DeclarationCal. Super. - 6th Dist.May 17, 2019O(DWNOUU'IAQJNA NNNNNNNNNAAAAAAAAAA mVOUT¥OONAO©mVO3014>OONA 1QCV3481 25 Santa Clara - Civil R. Nguyen HASSARD BONNINGTON LLP . . J. Julia Hansen-Arenas, Esq. (#225697) iih@hassard.Etéfigtmmfmuy F'led Susan K. Riggio, Esq. (#221287) skr@hassard.com ”perm" court 0f CA, 275 Battery Street, Suite 1600 County of Santa Clara, San Francisco, California 94111-3370 on 6/8/2021 2:47 PM Telephone: (415) 288-9800 Reviewed By: R. Nguyen Faxr (415) 288-9801 Case #19cv348125 Attorneys for Defendant EnveIOpe: 6606600 STANFORD HEALTH CARE (erroneously sued herein as “Stanford Hospital & Clinics”) IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA MATHEW P. ROWLEY, a disabled adult, No. 190V348125 by and through his Guardians ad Litem, PAUL ROWLEY and LIZABETH DECLARATION OF J. JULIA ROWLEY, HANSEN-ARENAS, ESQ., IN SUPPORT OF DEFENDANT’S EX Plaintiff, PARTE APPLICATION FOR ORDER COMPELLING MENTAL HEALTH vs. IME STANFORD HOSPITAL & CLINICS; ADAM RIZVI, M.D.; PRASHANTH KRISHNAMOHAN, M.D.; JAMSHID GHAJAR, M.D. and DOES ONE through FIFTY, inclusive Defendants. Complaint Filed: May 17, 201 9 Trial Date: Not yet set l, J. Julia Hansen-Esq., declare as follows: 1. | am an attorney licensed to practice law in the State of California, and | am a partner at the law firm of Hassard Bonnington LLP, attorneys of record for defendant STANFORD HEALTH CARE in the above-entitled action. 2. If called as a witness, | would be competent to testify to the facts set forth in this Declaration from my own personal knowledge, except where otherwise stated as based upon information and belief. 3. This action alleges medical negligence arising from the care and -1- DECLARATION OF J. JULIA HANSEN-ARENAS, ESQ., IN SUPPORT OF DEFENDANT’S EX PARTE APPLICATION FOR ORDER COMPELLING MENTAL HEALTH IME C:\Users\kij\AppData\LocaI\Temp\tmp7EA5.docx-6821 OLOOONOUO‘l-hOON-‘i NNNNNNNNNAAAAAAAAAA mNOUU‘l-PCDN-‘OLOmNOUU‘l-hCDNA treatment rendered to plaintiff Mathew Rowley (DOB: 5/1/1984) by Stanford Health Care on February 28, 2018 following a scooter accident in Mexico on February 23, 2018 for which he was initially evaluated and treated in Mexico. Plaintiff alleges defendant Stanford delayed surgical intervention, resulting in a brain herniation and permanent brain damage. 4. On June 8, 2021, | called counsel for plaintiff, Nathaniel Leeds, to confirm the mutual agreement of parties to file the instant Ex Parte Application. Plaintiff’s counsel had no objection to the filing and waived ordinary notice of ex parte application. 5. Since approximately July 201 9, plaintiff has lived continuously at the NeuroRestorative facility in Lutz, Florida, where he receives 24-hour a day care for his complex neurobehavioral needs. 6. It is undisputed that plaintiff’s mental health is at issue and there is no objection to the conduct of an independent neuropsychological evaluation of Plaintiff. 7. The parties have been unable to agree about the manner in which recording, if any, will occur during the neuropsychological assessment. 8. The Notice of IME, including details of the stipulated evaluation schedule and the proposed neuropsychological tests, was served on all parties. Attached herein as Exhibit 1 is a true and correct copy of the Notice of IME. /// /// /// /// /// /// /// /// -2- DECLARATION OF J. JULIA HANSEN-ARENAS, ESQ, IN SUPPORT OF DEFENDANT’S EXPARTE APPLICATION FOR ORDER COMPELLING MENTAL HEALTH IME C:\Users\kij\AppData\LocaI\Temp\tmp7EA5.docx-6821 O(DWNOUU'l-waA NNNNNNNNNAAAAAAAAAA mVOUT¥OONAO©mNGUTJ>OONA 9. Attached herein as Exhibit 2 is a true and correct copy of the Declaration of Jeffrey Wertheimer, PhD, ABPP-CN. Appended to the declaration are copies of each of the referenced publications regarding the reasoning to preclude third party observers, whether by way of the presence of an individual or through a recording device, during the neuropsychological testing. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 8‘“ day of June 2021 at Millbrae, California. x J.J Ii Han nWas ‘ -3- DECLARATION OF J. JULIA HANSEN-ARENAS, ESQ., IN SUPPORT OF DEFENDANT’S EXPARTE APPLICATION FOR ORDER COMPELLING MENTAL HEALTH IME C:\Users\kij\AppData\LocaI\Temp\tmp7EA5.docx-6821 DOONOUU‘l-POONA NNMNNNNNNAAAAAAAAAA OONQCJ‘I-POJN-‘OLO@N®U‘I#OONAO INDEX OF EXHIBITS CN with appended referenced publications Exhibit No. Description Page Number Exhibit 1 Notice of IME 5 Exhibit 2 Declaration of Jeffrey Wertheimer, PhD, ABPP- 1O EXHIBIT 1 -5- OCDODVOU‘l-POON-K NNMNNNNNNAAAAAAAAAA mem¥WNAO®mV®UT¥OONA HASSARD BONNINGTON LLP J. Julia Hansen-Arenas, Esq. (#225697) iih@hassard.com Susan K. Riggio, Esq. (#221287) skr@hassard.com 275 Battery Street, Suite 1600 San Francisco, California 941 1 1-3370 Telephone: (415) 288-9800 Fax: (415) 288-9801 Attorneys for Defendant STANFORD HEALTH CARE (erroneously sued herein as “Stanford Hospital & Clinics”) IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA MATHEW P. ROWLEY, a disabled adult, No. 19CV348125 by and through his Guardians ad Litem, PAUL ROWLEY and LIZABETH ROWLEY, NOTICE OF INDEPENDENT MEDICAL EXAMINATION Plaintiff, vs. STANFORD HOSPITAL & CLINICS; ADAM RIZVI, M.D.; PRASHANTH KRISHNAMOHAN, M.D.; JAMSHID GHAJAR, M.D. and DOES ONE through FIFTY, inclusive, Defendants. Defendant Stanford Health Care hereby demand, pursuant to Code of Civil Procedure §§ 2032.020 and 2032.220, and pursuant to the stipulation and agreement of counsel regarding scheduling, that plaintiff Mathew Rowley present on June 22, 2021 from 9 am to 10:30 am and 1 pm to 2 pm, and June 23, 2021 from 9 am to 10 am, if needed, at Neurorestorative Florida located at 2411 Clement Road, Lutz, Florida 33509, and submit to an Independent Medical Examination (IME) to be conducted by neuropsychologist Jeffrey Wertheimer, Ph.D. to determine the nature and extent of plaintiff's alleged injuries. The nature, scope, condition, and manner of examination are to be as follows. 1. This neuropsychological IME will consist of a diagnostic interview -1- NOTICE OF INDEPENDENT MEDICAL EXAMINATION C:\Users\x|b\ND Office Echo\VAULT-6ECDJ09U\Notice of IME 4835-8181-3734 v.1.docx-6221 -5- OLOOONQO‘l-POONA NNNNNNNNNAAAAAAAAAA mNOUO'l-hCDNAOLOWVOUU'l-thA portion and a standardized testing portion. 2 The diagnostic interview portion of the IME will include, but may not be limited to, background information, social history, present life circumstances, medical and psychological history, and diagnostic interview questions germane to plaintiff’s neuropsychological status. 3. The standardized testing portion of the IME will involve the administration of various tests (psychometric instruments). The range of possible tests to be administered consist of the following: Abbreviated Parietal Lobe-Battery; Awareness Questionnaire; BDAE Complex Ideation; BDI Fast Screen; Brief Screening Inventory - 18; Cognitive Log; COWAT FAS; Disability Rating Scale; Functional Activity Questionnaire; Grooved Pegboard; Independent Living Scale (Select items); Luria Complex Motor; MAST; Neuropsychiatric Inventory Questionnaire - Q; NIH Toolbox - Cognition (select measures); O-Log; PCL; PROMIS Mood Measures; Repeatable Battery for the Assessment of Neuropsychological Status; Rey Complex Figure Test; Trail Making Test; WAIS-IV (Select tests); Wide Range Achievement Test - 5; and WMS-III Mental Control. This examination utilizes a fixed-flexible assessment approach, where select tests from the list will be incorporated and other tests will not, with selection being contingent on the examinee's performance during the assessment. Moreover, the assessment instruments are tailored to the examinee's clinical presentation. 4. No third-party observers or third-party recordings will be allowed during any portion of this IME, with the exception of one of the trained clinical staff from NeuroRestorative Florida who normally supervise plaintiff, who shall not disrupt the IME but shall be present during the entirety of the IME to observe for safety and security purposes. 5. Dr. Wertheimer will audiotape the interview portion of the IME but there will be no recordings ofthe standardized testing portion of the IME. Dr. Wertheimer will provide copies of the audiotape of the interview portion of the IME to counsel for -2- NOTICE OF INDEPENDENT MEDICAL EXAMINATION C:\Users\xlb\ND Office Echo\VAULT-6ECDJ09U\Notice of IME 4835-8181-3734 v.1 .docx-6221 -7- OCDODVQU‘l-POON-K NNMNNNNNNAAAAAAAAAA mem¥WNAO®mNO§UT¥OONA plaintiff and defendant. 6. Dr. Wertheimer will share the raw data from the standardized testing portion of the IME with plaintiff’s neuropsychological expert, after verification that this person is a duly licensed psychologist with active licensure. 7. The IME will take approximately 90 minutes ofproductive time to complete. Breaks will be taken during the IME sessions on an as needed basis in Dr. Wertheimer’s clinical judgment to ensure the integrity of the IME and to provide plaintiff with a safe and secure environment. 8. The IME will not include any diagnostic tests or procedures that are painful, protracted, invasive or intrusive. Dated: June 2, 2021 'J. Iia Han en- ren Susan K. Riggio Attorneys for Defendant STANFORD HEALTH CARE -3- NOTICE OF INDEPENDENT MEDICAL EXAMINATION C:\Users\x|b\ND Office Echo\VAULT-6ECDJ09U\Notice of IME 4835-8181-3734 v.1.docx-6221 -8- OCDODVGU‘l-POON-K NNMNNNNNNAAAAAAAAAA mem¥WNAO®mNO§UT¥OONA PROOF OF SERVICE Rowley v. Stanford Health Care Santa County Superior Court Case No. 1QCV348125 | am a citizen of the United States. My business address is 275 Battery Street, Suite 1600, San Francisco, CA 941 1 1. My email address is xlb@hassard.com. | am employed in the County of San Francisco where this service occurs. | am over the age of 18 years and not a party to the within cause. | served the foregoing document(s) described as: NOTICE OF INDEPENDENT MEDICAL EXAMINATION on the interested parties in said action addressed as follows: COUNSEL FOR: Nathaniel M. Leeds, Esq. Tel: 415/659-1555 Plaintiff Mitchell Leeds, LLP nathaniel@mitchelllawsf.com 290 7th Avenue rebecca@mitche|Ilawsf.com San Francisco, CA 941 18 [X] BY ELECTRONIC TRANSMISSION ONLY: | e-mailed the document(s) to the persons at the e- mail address(es) listed based on notice previously provided that, during the Coronavirus (COVlD-19) pandemic, this office will be primarily working remotely, unable to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. | declare under penalty of perjury that the foregoing is true and correct. Executed on June 2, 2021 at San Francisco, California. 5‘ I 5r7 Xiomara Barcenas -4- NOTICE OF INDEPENDENT MEDICAL EXAMINATION C:\Users\x|b\ND Office Echo\VAULT-6ECDJ09U\Notice of IME 4835-8181-3734 v.1.docx-6221 -9- EXHIBIT 2 -10- LDOONOWU'IhUU 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 DECLARATION OF JEFFREY WERTHEIMER, PH.D., ABPP-CN I, Jeffrey Clark Wertheimer, Ph.D., ABPP-CN declare: 1. I am a board-certified Clinical Neuropsychologist practicing in Los Angeles, California; the Chief of Psychology and Neuropsychology Services, Associate Director of Physical Medicine and Rehabilitation, and Director 0f Clinical Training at Cedars-Sinai Medical Center and the California Rehabilitation Institute. In addition t0 administrative and research responsibilities, my clinical practice includes psychological and neuropsychological assessment, psychotherapy, behavioral management, and pain management intervention across the continuum 0f clinical care, from inpatient to outpatient consultations and in the context 0f medical-legal consultations. Imake this declaration based 0n my personal knowledge, and, if called to testify thereto, would competently d0 so. 2. I received my B.A. in Psychology at Miami University in Ohio, my M.A. in Counseling Psychology at West Virginia University, and my Ph.D. in Counseling Psychology at Oklahoma State University. I completed my Internship in Clinical Psychology and Neuropsychology at the Ann Arbor VA Healthcare System and University 0f Michigan in Ann Arbor, Michigan. I completed a two-year Postdoctoral Fellowship in Clinical Neuropsychology at the Rehabilitation Institute 0f Michigan/Wayne State University School 0f Medicine in Detroit, Michigan. 3. Neuropsychology is a specialty field within clinical psychology, dedicated to understanding the relationships between brain and behavior, particularly as these relationships can be applied t0 the diagnosis of psychological and brain disorders, assessment 0f cognitive, behavioral, and sensory functioning, and the design 0f effective treatment. Neuropsychology is a science fully accepted by the relevant professional communities that provides information about psychological and brain-related conditions impacting intelligence, academic skills, attention and concentration, executive functions (e.g., reasoning and problem solving), memory, language skills, Visual-spatial processing and sensory-motor functioning. The neuropsychologist may also administer tests and questionnaires concerning psychological aspects 0f mood, emotional health, behavior, and personality. Neuropsychologists incorporate diagnostic clinical interviews in conjunction With standardized assessment tools in order to address questions pertaining t0 psychological and behavioral functioning. -11. H LDOONOWU'IhUUN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Training and preparation in clinical neuropsychology specifically entails 1.) completion of a doctoral degree in psychology from an accredited university training program, 2.) internship in a clinically relevant area of professional psychology, 3.) the equivalent 0f two years of additional specialized training in clinical neuropsychology, and 4.) state or provincial licensure t0 practice psychology and/or clinical neuropsychology independently. Attainment 0f the American Board 0f Clinical Neuropsychology/American Board 0f Professional Psychology Diploma in Clinical Neuropsychology (i.e., board certification) is the clearest evidence 0f competence as a clinical neuropsychologist, assuring that all of these criteria have been met. 4. Based on established guidelines of professional practice and position statements established by national organizations within the specialization of clinical neuropsychology as well as general psychological practice, the presence of third party observers in the assessment process is prohibitive and a Violation 0f multiple core assessment principles. Given this, the presence 0f an observer during a neuropsychological assessment, either in physical presence of an individual 0r electronic recording devices such as Video 0r audio systems, should not be permitted. 5 . This practice guideline and opposition t0 third party observers during a neuropsychological assessment has been set forth by multiple preeminent organizations 0f neuropsychology and psychology, including the American Academy of Clinical Neuropsychology (Hamsher, Lee, & Baron, 2001), the American Board of Professional Neuropsychology (Lewandowski et a1., 2016), the National Academy 0fNeuropsychology (2000; 2003, Axelrod et 211., 2000), the American Psychological Association (APA) Ethical Principles 0f Psychologists and Code 0f Conduct (2017), as well as formal statements proffered from leaders in the field 0fpsychology and neuropsychology (Mahone, Nordal, Allen, Pliskin, & Meyers, 2014; Sweet & Breting, 2012). -12. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 6. The basis of this guideline and summary of existing position statements previously established by governing organizations in the field of neuropsychology is outlined as follows: a. Preiudiced Evaluation: The presence of third party observers during a neuropsychological evaluation Within a medico-legal context places the examinee under a heightened level 0f exposure and scrutiny, obstructs the development 0f rapport between the psychologist and examinee, greatly alters the examination process, introduces uncontrolled variables and artifacts into the evaluation, and compromises the validity and integrity 0f the assessment process and 0f test instruments. As such, the true nature of the examinee’s cognitive abilities can be obscured, and the outcome of the examinee’s performance may over- 0r under- represent his or her true conditions, leading t0 prejudiced conclusions. b. Multiple Sources 0f Technical Error: Problematic issues related t0 third party observers include: i. Distortion: Source 0f internal and/or external distraction distorting the examinee’s performance 0n test instruments. ii. Deviation from Standardized Protocol: Inability t0 obtain meaningful data due to deviation from standardized procedures outlined by test manufacturers and test publishers. Manuals 0f multiple tests have specified for the testing environment t0 be distraction free (Wechsler Adult Intelligence Scale [WAIS]-IV: Wechsler, 2008, p. 24; Rey Complex Figure Test: Meyers & Meyers, 1995, p. 6), With detailed instructions that “n0 one other than [the examiner] and the examinee should be in the room during testing” (CVLT-II: Delis et al., 2000, p. 8; WAIS-III: Wechsler, 1997, p. 29). The WAIS-III manual specifically states, “Attorneys who represent plaintiffs sometimes ask to observe, but typically withdraw this -13. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 request when informed of the potential effect of the presence 0f third person” (Wechsler, 1997, p. 29). iii. Lack 0fNormative Data: There is n0 normative data under conditions of third party observers t0 permit comparison t0 known groups. The use 0f audio 0r Video recordings compromise the validity, accuracy, reliability, and the interpretation of test data. c. Ethical Violation (APA): The American Psychological Association, a national organization governing the practice 0f psychology, has raised concerns for possible ethical Violations regarding the use 0f third party observers, specifically in the standards related to Competence and Assessment (American Psychological Association, 2017; Lewandowski et a1., 2016). Moreover, it is an ethical Violation in the field 0fpsychology for raw data and test materials t0 be released t0 or shared With a non-psychologist, including the examined party’s attorney and retained experts outside the field of psychology. d. Test Security: Test security may be compromised if the recording is disseminated t0 a non-psychologist, which would lead to public harm Via infringement of copyright and intellectual property 0f test authors and publishers and depriving the public of effective test instruments. e. Adverse Effects: There is substantial scientific research regarding the adverse effects 0n examinee test performance by the presence 0f third party observers (e.g., the social facilitation effect; McCaffrey, Fisher, Gold, & Lynch, 1996; Constantinou, Ashendorf, & McCaffrey, 2002) 7. Acceptable methods for procuring information obtained from a neuropsychological evaluation have been long established and adopted by the field 0f -1 4. 10 11 12 13 14 15 Neuropsychology and other specialties within Psychology. The customary practice and guidelines concerning release raw data and outcomes garnered are to release copies of test protocols upon request t0 a duly licensed psychologist, With verification 0f active licensure. It is an ethical Violation in the field 0fpsychology for raw data and tests to be shared with a non- psychologist, including the examined party’s attorney, and retained experts outside 0f the field of psychology. As such, audio recording 0f the interview portion would be acceptable; however, recordings of the assessment portion 0f the interaction would be regarded as prohibitive as aforementioned. I declare under penalty 0f perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed 0n May 27, 2021 in Pasadena, CA. JEFFREY CLARK WERTHEIMER, PH.D., ABPP-CN -1 5. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 References American Psychological Association (2017). Ethicalprinciples ofpsychologists and code 0f conduct. American Psychological Association. Retrieved from https://Www.apa.org/ethics/code/ethics-code-20 1 7.pdf. Axelrod, B., Barth, J., Faust, D., Fisher, J., Heilbronner, R., Larrabee, G., & Silver, C. (2000). Presence 0f third party observers during neuropsychological testing: Official statement of the National Academy 0fNeuropsychology. Archives 0f Clinical Neuropsychology, 15(5), 379-380. Constantinou, M., Ashendorf, L., & McCaffrey, R. J. (2002). When the third party observer of a neuropsychological evaluation is an audio-recorder. The Clinical Neuropsychologist, 16(3), 407-412. Delis, D., Kramer, J., Kaplan, E., & Ober, B. (2000). California Verbal Learning Test-Second Edition: Adult version. San Antonio, TX: The Psychological Corporation. Hamsher, K., Lee, G. P., & Baron, I. S. (2001). Policy statement on the presence 0f third party observers in neuropsychological assessments. Clinical Neuropsychologist, 15(4), 433-439. Lewandowski, A., Baker, W. J., Sewick, B., Knippa, J., Axelrod, B., & McCaffrey, R. J. (2016). Policy statement 0f the American board 0f professional neuropsychology regarding third party observation and the recording of psychological test administration in neuropsychological evaluations. Applied Neuropsychology, 23(6), 391-398. McCaffrey, R. J., Fisher, J. M., Gold, B. A., & Lynch, J. K. (1996). Presence 0f third parties during neuropsychological evaluations: Who is evaluating Whom? The Clinical Neuropsychologist, I 0(4), 435-449. -1 5. 10 11 12 13 14 15 16 17 18 Meyers, J., & Meyers, K. (1995). Rey Complex Figure Test and Recognition Trial, Lutz, FL: Psychological Assessment Resources. National Academy 0fNeuropsychology. (2000). Test security: Official position statement of the National Academy ofNeuropsychology. Archives 0f Clinical Neuropsychology, 15(5), 383-386. National Academy 0fNeuropsychology. (2003). Test security: An update. National Academy 0f Neuropsychology Position Papers. Retrieved from https://Www.nanonline.org/docs/PAIC/PDFs/NANTestSecurityUpdate.pdf. Sweet, J. J., & Breting, L. G. (2012, June). Afidavit regarding opposition t0 the presence 0f thirdparty observers and recording ofneuropsychological andpsychological assessments performed in the state oflllinois. American Academy of Clinical Neuropsychology Position Papers and Policies. Retrieved from https://theaacn.org/wp-content/uploads/ZO 1 5/ 1 O/third-party-observer-affidavit- completed-ZO 1 3 -a11-abcn-illinois-practicing-psychologists.pdf. Wechsler, D. (1997). Wechsler Adult Intelligence Scale-Third Edition: Administration and Scoring Manual. San Antonio, TX: The Psychological Corporation. Wechsler, D. (2008). Wechsler Adult Intelligence Scale-Fourth Edition: Administration and Scoring Manual. San Antonio, TX: The Psychological Corporation. -1 7. fl AMERICAN PSYCHOLOGICAL ASSOCIATION ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT Adopted August 21, 2002 Effective June 1, 2003 (With the 2010 Amendments to Introduction and Applicability and Standards 1.02 and 1.03, EfiecfiveJune1,2010) With the 2016 Amendment to Standard 3.04 Adopted August 3, 2016 Effective January 1, 2017 APRH25WWW” -1 3- ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT INTRODUCTIONAND APPLICABILITY PREAMBLE GENERAL PRINCIPLES Principle A: Beneficence and Nonmaleficence Principle B: Fidelity and Responsibility Principle C: Integrity Principle D: Justice Principle E: Respect for People’s Rights and Dignity ETHICAL STANDARDS 1. Resolving Ethical Issues 1.01 Misuse 0fPsychologists’ Work 1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority 1.03 Conflicts Between Ethics and Organizational Demands 1.04 Informal Resolution ofEthical Violations 1.05 Reporting Ethical Violations 1.06 Cooperating With Ethics Committees 1.07 Improper Complaints 1.08 Unfair Discrimination Against Complainants and Respondents 2. Competence 2.01 Boundaries of Competence 2.02 Providing Services in Emergencies 2.03 Maintaining Competence 2.04 Bases for Scientific and Professional Judgments 2.05 Delegation ofWork to Others 2.06 Personal Problems and Conflicts 3. Human Relations 3.01 Unfair Discrimination 3.02 Sexual Harassment 3.03 Other Harassment 3.04 Avoiding Harm 3.05 Multiple Relationships 3.06 Conflict 0f Interest 3.07 Third-Party Requests for Services 3.08 Exploitative Relationships 3.09 Cooperation With Other Professionals 3.10 Informed Consent 3. 11 Psychological Services Delivered t0 or Through Organizations 3. 12 Interruption ofPsychological Services 4. Privacy and Confidentiality 4.01 Maintaining Confidentiality 4.02 4.03 4.04 4.05 4.06 4.07 5.01 5.02 5.03 5.04 5.05 5.06 6.01 6.02 6.03 6.04 6.05 6.06 6.07 7.01 7.02 7.03 7.04 7.05 7.06 7.07 8.01 8.02 8.03 CONTENTS Discussing the Limits 0f Confidentiality Recording Minimizing Intrusions on Privacy Disclosures Consultations Use 0f Confidential Information for Didactic or Other Purposes Advertising and Other Public Statements Avoidance of False or Deceptive Statements Statements by Others Descriptions ofWorkshops and Non-Degree-Granting Educational Programs Media Presentations Testimonials In-Person Solicitation Record Keeping and Fees Documentation of Professional and Scientific Work and Maintenance ofRecords Maintenance, Dissemination, and Disposal of Confidential Records of Professional and Scientific Work Withholding Records for Nonpayment Fees and Financial Arrangements Barter With Clients/Patients Accuracy in Reports to Payors and Funding Sources Referrals and Fees Education and Training Design ofEducation and Training Programs Descriptions ofEducation and Training Programs Accuracy in Teaching Student Disclosure ofPersonal Information Mandatory Individual or Group Therapy Assessing Student and Supervisee Performance Sexual Relationships With Students and Supervisees Research and Publication Institutional Approval Informed Consent to Research Informed Consent for Recording Voices and Images in Research 8.04 Client/Patient, Student, and Subordinate Research Participants 8.05 Dispensing With Informed Consent for Research 8.06 Oflering Inducements for Research Participation 8.07 Deception in Research 8.08 Debriefing 8.09 Humane Care and Use ofAnimals in Research 8.10 Reporting Research Results 8.1 1 Plagiarism 8. 1 2 Publication Credit 8.13 Duplicate Publication ofData 8. 14 Sharing Research Data for Verification 8.15 Reviewers 9. Assessment 9.01 Bases for Assessments 9.02 Use ofAssessments 9.03 Informed Consent in Assessments 9.04 Release ofTest Data 9.05 Test Construction 9.06 Interpreting Assessment Results 9.07 Assessment by Unqualified Persons 9.08 Obsolete Tests and Outdated Test Results 9.09 Test Scoring and Interpretation Services 9. 1 O Explaining Assessment Results 9.1 1 Maintaining Test Security 10. Therapy 10.01 Informed Consent to Therapy 10.02 Therapy Involving Couples or Families 10.03 Group Therapy 10.04 Providing Therapy to Those Served by Others 10.05 Sexual Intimacies With Current Therapy Clients/Patients 10.06 Sexual Intimacies With Relatives or Significant Others of Current Therapy Clients/Patients 10.07 Therapy With Former Sexual Partners 10.08 Sexual Intimacies With Former Therapy Clients/Patients 10.09 Interruption ofTherapy 10. 10 Terminating Therapy AMENDMENTS TO THE 2002 “ETHICAL PRINCIPLES OF PSYCHOLOGISTSAND CODE OF CONDUCT” IN 2010AND 2016 EfiectiveJune l, 2003 (as amended 2.010, 2016). Effective January 1, 2017 Copyright © 2.017 by the American Psychological Association. 0003-066X -19. INTRODUCTIONAND APPLICABILITY The American Psychological Association’s (APA’S) Ethical Principles of Psychologists and Code of Conduct (hereinafter referred to as the Ethics Code) consists of an Introduction, a Preamble, five General Principles (A-E), and specific Ethical Standards. The Introduction discusses the intent, organization, procedural considerations, and scope of application ofthe Ethics Code. The Preamble and General Principles are aspirational goals to guide psycholo- gists toward the highest ideals ofpsychology. Although the Preamble and General Principles are not themselves en- forceable rules, they should be considered by psychologists in arriving at an ethical course of action. The Ethical Stan- dards set forth enforceable rules for conduct as psycholo- gists. Most of the Ethical Standards are written broadly, in order to apply to psychologists in varied roles, although the application of an Ethical Standard may vary depending on the context. The Ethical Standards are not exhaustive. The fact that a given conduct is not specifically addressed by an Ethical Standard does not mean that it is necessarily either ethical or unethical. This Ethics Code applies only to psychologists’ ac- tivities that are part oftheir scientific, educational, or profes- sional roles as psychologists. Areas covered include but are not limited t0 the clinical, counseling, and school practice of psychology; research; teaching,- supervision of trainees; public service; policy development; social intervention; development of assessment instruments; conducting as- sessments; educational counseling,- organizational consult- ing; forensic activities; program design and evaluation; and administration. This Ethics Code applies to these activities across a variety of contexts, such as in person, postal, tele- phone, Internet, and other electronic transmissions. These activities shall be distinguished from the purely private con- duct ofpsychologists, which is not Within the purview ofthe Ethics Code. Membership in the APA commits members and stu- dent affiliates to complywith the standards oftheAPAEthics Code and to the rules and procedures used to enforce them. Lack 0f awareness or misunderstanding 0f an Ethical Stan- dard is not itselfa defense to a charge ofunethical conduct. The procedures for filing, investigating, and resolving complaints ofunethical conduct are described in the current Rules and Procedures 0f the APA Ethics Committee. APA may impose sanctions on its members for Violations of the standards of the Ethics Code, including termination ofAPA membership, and may notify other bodies and individuals of its actions. Actions that Violate the standards of the Ethics Code may also lead to the imposition of sanctions on psy- chologists or students Whether 0r not they are APA mem- bers by bodies other thanAPA, including state psychological associations, other professional groups, psychology boards, other state or federal agencies, and payers for health services. In addition, APA may take action against a member after his or her conviction of a felony, expulsion or suspension from an afliliated state psychological association, or suspension or loss of licensure. When the sanction to be imposed byAPA is less than expulsion, the 2001 Rules and Procedures do not guarantee an opportunity for an in-person hearing, but gen- erally provide that complaints will be resolved only on the basis ofa submitted record. The Ethics Code is intended to provide guidance for psychologists and standards ofprofessional conduct that can be applied by the APA and by other bodies that choose to adopt them. The Ethics Code is not intended to be a basis of civil liability. Whether a psychologist has violated the Eth- ics Code standards does not by itself determine whether the psychologist is legally liable in a court action, Whether a contract is enforceable, or whether other legal consequences occur. The American Psychological Association’s Council of Representatives ad- opted this version of the APA Ethics Code during its meeting 0n August 21, 2002. The Code became effective onJune 1, 2003. The Council ofRepresen- tatives amended this version ofthe Ethics Code on February 20, 2010, eflec- tiveJune 1, 2010, and on August 3, 2016, eflectivejanuary 1, 2017. (see p. 16 of this pamphlet). Inquiries concerning the substance or interpretation of the APA Ethics Code should be addressed to the Oflice of Ethics, American Psychological Association, 750 First St. NE, Washington, DC 20002-4242. This Ethics Code and information regarding the Code can be found on the APA website, http: //www.apa.org/ethics. The standards in this Ethics Code will be used to adjudicate complaints brought concerning alleged conduct occurring on or after the efiective date. Complaints will be adjudicated on the basis of the version of the Ethics Code that was in effect at the time the conduct occurred. The APA has previously published its Ethics Code, or amendments there- to, as follows: American Psychological Association. (1953). Ethical standards ofpsycholo- gists. Washington, DC: Author. American Psychological Association. (1959). Ethical standards ofpsycholo- gists. American Psychologist, 14, 279-282. American Psychological Association. (1963). Ethical standards ofpsycholo- gists. American Psychologist, 1 8, 56-60. American Psychological Association. (1968). Ethical standards ofpsycholo- gists. American Psychologist, 23, 357-361. American Psychological Association. (1977, March). Ethical standards of psychologists. APA Monitor, 22-23. American Psychological Association. (1979). Ethical standards ofpsycholo- gists. Washington, DC: Author. American Psychological Association. (198 1). Ethical principles ofpsycholo- gists. American Psychologist, 36, 633-638. American Psychological Association. (1990). Ethical principles ofpsycholo- gists (Amendedjune 2, 1989). American Psychologist, 45, 390-395. American Psychological Association. (1992). Ethical principles ofpsycholo- gists and code 0f conduct. American Psychologist, 47, 1597-161 1. American Psychological Association. (2002). Ethical principles ofpsycholo- gists and code ofconduct. American Psychologist, 57, 1060-1073. American Psychological Association. (2010). 2010 amendments to the 2002 ”Ethical Principles ofPsychologists and Code 0fConduct.”American Psycholo- gist, 65, 493. American Psychological Association. (2016). Revision of ethical standard 3.04 ofthe "Ethical Principles ofPsychologists and Code 0f Conduct” (2002, as amended 2010). American Psychologist, 71 , 900. Request copies of the APA’s Ethical Principles of Psychologists and Code of Conduct from the APA Order Department, 750 First St. NE, Washington, DC 20002-4242, or phone (202) 336-5510. 2 Introduction and Applicability Effective January l, 20 17 -20. The modifiers used in some of the standards of this Ethics Code (e.g., reasonably, appropriate, potentially) are in- cluded in the standards when they would ( 1) allow profes- sional judgment on the part of psychologists, (2) eliminate injustice or inequality that would occur Without the modi- fier, (3) ensure applicability across the broad range of ac- tivities conducted by psychologists, or (4) guard against a set of rigid rules that might be quickly outdated. As used in this Ethics Code, the term reasonable means the prevailing professional judgment of psychologists engaged in similar activities in similar circumstances, given the knowledge the psychologist had or should have had at the time. In the process of making decisions regarding their professional behavior, psychologists must consider this Ethics Code in addition to applicable laws and psychol- ogy board regulations. In applying the Ethics Code to their professional work, psychologists may consider other ma- terials and guidelines that have been adopted or endorsed by scientific and professional psychological organizations and the dictates of their own conscience, as well as consult with others within the field. If this Ethics Code establishes a higher standard of conduct than is required by law, psy- chologists must meet the higher ethical standard. If psy- chologists’ ethical responsibilities conflict With law, regu- lations, or other governing legal authority, psychologists make known their commitment to this Ethics Code and take steps to resolve the conflict in a responsible manner in keeping with basic principles ofhuman rights. PREAMBLE Psychologists are committed to increasing scientific and professional knowledge of behavior and people’s un- derstanding ofthemselves and others and to the use ofsuch knowledge to improve the condition ofindividuals, organi- zations, and society. Psychologists respect and protect civil and human rights and the central importance offreedom of inquiry and expression in research, teaching, and publica- tion. They strive t0 help the public in developing informed judgments and choices concerning human behavior. In do- ing so, they perform many roles, such as researcher, edu- cator, diagnostician, therapist, supervisor, consultant, ad- ministrator, social interventionist, and expert witness. This Ethics Code provides a common set ofprinciples and stan- dards upon which psychologists build their professional and scientific work. This Ethics Code is intended to provide specific standards to cover most situations encountered by psy- chologists. It has as its goals the welfare and protection of the individuals and groups with whom psychologists work and the education ofmembers, students, and the public re- garding ethical standards ofthe discipline. The development of a dynamic set of ethical stan- dards for psychologists’ work-related conduct requires a personal commitment and lifelong effort to act ethically; to encourage ethical behavior by students, supervisees, employees, and colleagues; and to consult with others con- cerning ethical problems. GENERAL PRINCIPLES This section consists of General Principles. General Principles, as opposed to Ethical Standards, are aspiration- al in nature. Their intent is to guide and inspire psycholo- gists toward the very highest ethical ideals of the profes- sion. General Principles, in contrast t0 Ethical Standards, do not represent obligations and should not form the basis for imposing sanctions. Relying upon General Principles for either of these reasons distorts both their meaning and purpose. Principle A: Beneficence and Nonmaleficence Psychologists strive to benefit those with whom they work and take care to do no harm. In their profession- al actions, psychologists seek to safeguard the welfare and rights ofthose with whom they interact professionally and other affected persons, and the welfare 0fanimal subjects of research. When conflicts occur among psychologists’ obli- gations or concerns, they attempt to resolve these conflicts in a responsible fashion that avoids or minimizes harm. Be- cause psychologists' scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse of their influ- ence. Psychologists strive to be aware of the possible effect of their own physical and mental health on their ability to help those with whom they work. Principle B: Fidelity and Responsibility Psychologists establish relationships of trust with those with whom they work. They are aware of their pro- fessional and scientific responsibilities to society and to the specific communities in which they work. Psychologists uphold professional standards of conduct, clarify their pro- fessional roles and obligations, accept appropriate respon- sibility for their behavior, and seek to manage conflicts of interest that could lead to exploitation or harm. Psycholo- gists consult With, refer to, or cooperate with other profes- sionals and institutions to the extent needed to serve the best interests ofthose withwhom they work. They are con- cerned about the ethical compliance of their colleagues’ scientific and professional conduct. Psychologists strive to contribute a portion 0f their professional time for little or no compensation or personal advantage. Principle C: Integrity Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of EfiectiveJanuary l, 20 l7 Preamble-Principle C 3 -21. psychology. In these activities psychologists do not steal, cheat, or engage in fraud, subterfuge, or intentional mis- representation of fact. Psychologists strive to keep their promises and to avoid unwise or unclear commitments. In situations in Which deception may be ethically justifiable to maximize benefits and minimize harm, psychologists have a serious obligation to consider the need for, the possible consequences of, and their responsibility to correct any re- sulting mistrust or other harmful effects that arise from the use ofsuch techniques. Principle D: Justice Psychologists recognize that fairness and justice entitle all persons to access to and benefit from the con- tributions of psychology and to equal quality in the pro- cesses, procedures, and services being conducted by psy- chologists. Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices. Principle E: Respect for People’s Rights and Dignity Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confiden- tiality, and self-determination. Psychologists are aware that special safeguards may be necessary to protect the rights and welfare of persons or communities Whose vulnerabili- ties impair autonomous decision making. Psychologists are aware ofand respect cultural, individual, and role differ- ences, including those based on age, gender, gender iden- tity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status, and consider these factors when working with members of such groups. Psychologists try to eliminate the effect on their work ofbiases based on those factors, and they do not knowingly participate in or condone activities of others based upon such prejudices. ETHICAL STANDARDS 1 . Resolving Ethical Issues 1.01 Misuse ofPsychologists’ Work If psychologists learn of misuse or misrepresenta- tion of their work, they take reasonable steps to correct or minimize the misuse or misrepresentation. 1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature ofthe conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent With the General Principles and Ethical Standards ofthe Ethics Code. Under no circumstances may this standard be used to justify or defend Violating human rights. 1.03 Conflicts Between Ethics and Organizational Demands If the demands of an organization with which psy- chologists are afliliated or for whom they are working are in conflict with this Ethics Code, psychologists clarify the nature ofthe conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the con- flict consistent with the General Principles and Ethical Stan- dards ofthe Ethics Code. Under no circumstances may this standard be used to justify or defend violatinghuman rights. 1.04 Informal Resolution ofEthical Violations When psychologists believe that there may have been an ethical Violation by another psychologist, they at- tempt to resolve the issue by bringing it to the attention of that individual, if an informal resolution appears appropri- ate and the intervention does not Violate any confidential- ity rights that may be involved. (See also Standards 1.02, Conflicts Between Ethics and Law, Regulations, 0r Other Governing Legal Authority, and 1.03, Conflicts Between Ethics and Organizational Demands.) 1 .05 Reporting Ethical Violations If an apparent ethical Violation has substantially harmed or is likely to substantiallyharm a person or organi- zation and is not appropriate for informal resolution under Standard 1.04, Informal Resolution 0f Ethical Violations, or is not resolved properly in that fashion, psychologists take further action appropriate to the situation. Such ac- tion might include referral to state or national committees on professional ethics, to state licensing boards, or to the appropriate institutional authorities. This standard does not applywhen an intervention would Violate confidential- ity rights or When psychologists have been retained to re- view the work of another psychologist whose professional conduct is in question. (See also Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority.) 1.06 Cooperating with Ethics Committees Psychologists cooperate in ethics investigations, proceedings, and resulting requirements of the APA or any afliliated state psychological association to which they be- long. In doing so, they address any confidentiality issues. Failure to cooperate is itself an ethics Violation. However, making a request for deferment of adjudication of an eth- ics complaint pending the outcome of litigation does not alone constitute noncooperation. 4 Principle D-Standard 1.06 Effective January l, 20 17 -22. 1.07 Improper Complaints Psychologists do not file or encourage the filing of ethics complaints that are made with reckless disregard for or willful ignorance offacts that would disprove the allegation. 1.08 Unfair Discrimination Against Complainants and Respondents Psychologists do not deny persons employment, advancement, admissions to academic or other programs, tenure, or promotion, based solely upon their having made or their being the subject of an ethics complaint. This does not preclude taking action based upon the outcome ofsuch proceedings or considering other appropriate information. 2. Competence 2.01 Boundaries ofCompetence (a) Psychologists provide services, teach, and con- duct research With populations and in areas onlyWithin the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience. (b) Where scientific or professional knowledge in the discipline ofpsychology establishes that an understand- ing of factors associated with age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual ori- entation, disability, language, or socioeconomic status is essential for effective implementation of their services or research, psychologists have or obtain the training, experi- ence, consultation, or supervision necessary to ensure the competence of their services, or they make appropriate re- ferrals, except as provided in Standard 2.02, Providing Ser- vices in Emergencies. (c) Psychologists planning to provide services, teach, or conduct research involving populations, areas, techniques, or technologies new to them undertake rel- evant education, training, supervised experience, consulta- tion, 0r study. (d) When psychologists are asked to provide servic- es to individuals for whom appropriate mental health ser- vices are not available and for which psychologists have not obtained the competence necessary, psychologists with closely related prior training 0r experience may provide such services in order to ensure that services are not denied if they make a reasonable effort to obtain the competence required by using relevant research, training, consultation, or study. (e) In those emerging areas in which generally rec- ognized standards for preparatory training do not yet exist, psychologists nevertheless take reasonable steps to ensure the competence of their work and to protect clients/pa- tients, students, supervisees, research participants, organi- zational clients, and others from harm. (f) When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or adminis- trative rules governing their roles. 2.02 Providing Services in Emergencies In emergencies, When psychologists provide ser- vices to individuals for whom other mental health services are not available and for which psychologists have not ob- tained the necessary training, psychologists may provide such services in order to ensure that services are not denied. The services are discontinued as soon as the emergency has ended or appropriate services are available. 2.03 Maintaining Competence Psychologists undertake ongoing efforts to develop and maintain their competence. 2.04 Bases for Scientific and ProfessionalJudgments Psychologists’ work is based upon established scien- tific and professional knowledge ofthe discipline. (See also Standards 2.01e, Boundaries of Competence, and 10.01b, Informed Consent to Therapy.) 2.05 Delegation ofWork to Others Psychologists who delegate work to employees, supervisees, or research or teaching assistants or who use the services of others, such as interpreters, take reasonable steps to (1) avoid delegating such work to persons Who have a multiple relationship With those being served that would likely lead to exploitation or loss of objectivity; (2) authorize only those responsibilities that such persons can be expected to perform competently on the basis of their education, training, or experience, either independently or With the level of supervision being provided; and (3) see that such persons perform these services competently. (See also Standards 2.02, Providing Services in Emergencies; 3.05, Multiple Relationships; 4.01, Maintaining Confiden- tiality; 9.01, Bases for Assessments; 9.02, Use of Assess- ments; 9.03, Informed Consent in Assessments,- and 9.07, Assessment by Unqualified Persons.) 2.06 Personal Problems and Conflicts (a) Psychologists refrain from initiating an activity When they know or should know that there is a substantial likelihood that their personal problems Will prevent them from performing their work-related activities in a compe- tent manner. (b) When psychologists become aware of personal problems that may interfere with their performing work- related duties adequately, they take appropriate measures, such as obtaining professional consultation or assistance, and determine whether they should limit, suspend, or ter- minate their work-related duties. (See also Standard 10.10, Terminating Therapy.) EfiectiveJanuary l, 20 l7 Standard 1.07-Standard 2.06 5 -23. 3. Human Relations 3.0 l Unfair Discrimination In their work-related activities, psychologists do not engage in unfair discrimination based on age, gender, gender identity, race, ethnicity, culture, national origin, re- ligion, sexual orientation, disability, socioeconomic status, or any basis proscribed by law. 3.02 Sexual Harassment Psychologists do not engage in sexual harassment. Sexual harassment is sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature, that occurs in connection with the psychologist’s activities or roles as a psychologist, and that either (1) is unwelcome, is offensive, or creates a hostile workplace or educational environment, and the psychologist knows or is told this or (2) is sufliciently severe or intense to be abusive to a rea- sonable person in the context. Sexual harassment can con- sist of a single intense or severe act or ofmultiple persistent or pervasive acts. (See also Standard 1.08, Unfair Discrimi- nation Against Complainants and Respondents.) 3.03 Other Harassment Psychologists do not knowingly engage in behavior that is harassing or demeaning to persons with whom they interact in their work based on factors such as those per- sons’ age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, lan- guage, or socioeconomic status. 3.04 Avoiding Harm (a) Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, re- search participants, organizational clients, and others With whom theywork, and to minimize harm where it is foresee- able and unavoidable. (b) Psychologists do not participate in, facilitate, as- sist, or otherwise engage in torture, defined as any act by Which severe pain or suffering, Whether physical or mental, is intentionally inflicted on a person, or in any other cruel, inhuman, or degrading behavior that violates 3.04a. 3.05 Multiple Relationships (a) A multiple relationship occurs When a psycholo- gist is in a professional role With a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely as- sociated with or related to the person With whom the psy- chologist has the professional relationship, 0r (3) promises to enter into another relationship in the future With the person or a person closely associated with or related to the person. A psychologist refrains from entering into a mul- tiple relationship if the multiple relationship could reason- ably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her func- tions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relation- ship exists. Multiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical. (b) If a psychologist finds that, due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist takes reasonable steps to resolve it With due regard for the best interests ofthe affected person and maximal compliance With the Ethics Code. (c) When psychologists are required by law, insti- tutional policy, or extraordinary circumstances to serve in more than one role in judicial or administrative proceed- ings, at the outset they clarify role expectations and the eX- tent ofconfidentiality and thereafter as changes occur. (See also Standards 3.04, Avoiding Harm, and 3.07, Third-Party Requests for Services.) 3.06 Conflict ofInterest Psychologists refrain from taking on a professional role When personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be eX- pected to (1) impair their objectivity, competence, or ef- fectiveness in performing their functions as psychologists 0r (2) expose the person or organization with whom the professional relationship exists to harm or exploitation. 3.07 Third-Party Requests for Services When psychologists agree to provide services to a person or entity at the request of a third party, psycholo- gists attempt to clarify at the outset of the service the na- ture ofthe relationship with all individuals or organizations involved. This clarification includes the role ofthe psychol- ogist (e.g., therapist, consultant, diagnostician, or expert witness), an identification ofwho is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (See also Standards 3.05, Multiple relationships, and 4.02, Dis- cussing the Limits of Confidentiality.) 3.08 Exploitative Relationships Psychologists do not exploit persons over whom they have supervisory, evaluative or other authority such as clients/patients, students, supervisees, research partici- pants, and employees. (See also Standards 3.05, Multiple Relationships; 6.04, Fees and Financial Arrangements; 6.05, Barter with Clients/Patients; 7.07, Sexual Relation- ships With Students and Supervisees; 10.05, Sexual Intima- 6 Standard 3.01-Standard 3.08 Effective January l, 20 17 -24. cies with Current Therapy Clients/Patients; 10.06, Sexual Intimacies with Relatives or Significant Others of Current Therapy Clients/Patients; 10.07, Therapy with Former Sexual Partners; and 10.08, Sexual Intimacies With Former Therapy Clients/Patients.) 3.09 Cooperation with Other Professionals When indicated and professionally appropriate, psychologists cooperate with other professionals in order to serve their clients/patients effectively and appropriately. (See also Standard 4.05, Disclosures.) 3. 10 Informed Consent (a) When psychologists conduct research or pro- vide assessment, therapy, counseling, or consulting servic- es in person or Via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reason- ably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code. (See also Standards 8.02, Informed Con- sent to Research; 9.03, Informed Consent in Assessments; and 10.01, Informed Consent to Therapy.) (b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare. (c) When psychological services are court ordered or otherwise mandated, psychologists inform the indi- vidual of the nature of the anticipated services, including Whether the services are court ordered or mandated and any limits of confidentiality, before proceeding. (d) Psychologists appropriately document written or oral consent, permission, and assent. (See also Stan- dards 8.02, Informed Consent to Research; 9.03, Informed Consent in Assessments; and 10.01, Informed Consent to Therapy.) 3.1 l Psychological Services Delivered to or Through Organizations (a) Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate those directly affected by the services about (1) the nature and objectives of the services, (2) the intended recipients, (3) which of the individuals are clients, (4) the relationship the psychologist Will have with each per- son and the organization, (5) the probable uses of services provided and information obtained, (6) who will have ac- cess to the information, and (7) limits of confidentiality. As soon as feasible, they provide information about the results and conclusions ofsuch services to appropriate persons. (b) If psychologists Will be precluded by law or by organizational roles from providing such information to particular individuals or groups, they so inform those indi- viduals or groups at the outset 0fthe service. 3. 12 Interruption ofPsychological Services Unless otherwise covered by contract, psycholo- gists make reasonable efiorts to plan for facilitating services in the event that psychological services are interrupted by factors such as the psychologist’s illness, death, unavailabil- ity, relocation, or retirement or by the client’s/patient’s re- location or financial limitations. (See also Standard 6.02c, Maintenance, Dissemination, and Disposal of Confidential Records ofProfessional and Scientific Work.) 4. Privacy and Confidentiality 4.01 Maintaining Confidentiality Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regu- lated by law or established by institutional rules or profes- sional or scientific relationship. (See also Standard 2.05, Delegation ofWork to Others.) 4.02 Discussing the Limits ofConfidentiality (a) Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confi- dentiality and (2) the foreseeable uses of the information generated through their psychological activities. (See also Standard 3.10, Informed Consent.) (b) Unless it is not feasible 0r is contraindicated, the discussion ofconfidentiality occurs at the outset ofthe rela- tionship and thereafter as new circumstances may warrant. (c) Psychologists who offer services, products, or information Via electronic transmission inform clients/pa- tients ofthe risks to privacy and limits of confidentiality. 4.03 Recording Before recording the voices or images ofindividuals to whom they provide services, psychologists obtain per- mission from all such persons or their legal representatives. (See also Standards 8.03, Informed Consent for Recording Voices and Images in Research; 8.05, Dispensing with In- formed Consent for Research,- and 8.07, Deception in Re- search.) EfiectiveJanuary l, 20 l7 Standard 3.09-Standard 4.03 7 -25- 4.04 Minimizing Intrusions on Privacy (a) Psychologists include in written and oral reports and consultations, only information germane to the pur- pose for Which the communication is made. (b) Psychologists discuss confidential information obtained in their work only for appropriate scientific or professional purposes and only with persons clearly con- cerned with such matters. 4.05 Disclosures (a) Psychologists may disclose confidential infor- mation with the appropriate consent of the organizational client, the individual client/patient, or another legally au- thorized person 0n behalf of the client/patient unless pro- hibited by law. (b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the cli- ent/patient, psychologist, or others from harm; or (4) ob- tain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is neces- sary to achieve the purpose. (See also Standard 6.04e, Fees and Financial Arrangements.) 4.06 Consultations When consulting with colleagues, (1) psychologists do not disclose confidential information that reasonably could lead to the identification of a client/patient, research participant, or other person or organization With whom they have a confidential relationship unless they have ob- tained the prior consent of the person or organization or the disclosure cannot be avoided, and (2) they disclose in- formation only to the extent necessary to achieve the pur- poses of the consultation. (See also Standard 4.01, Main- taining Confidentiality.) Use ofConfidential Information for Didactic or Other Purposes 4.07 Psychologists do not disclose in their writings, lec- tures, or other public media, confidential, personally iden- tifiable information concerning their clients/patients, stu- dents, research participants, organizational clients, or other recipients of their services that they obtained during the course of their work, unless (1) they take reasonable steps to disguise the person or organization, (2) the person or organization has consented in writing, or (3) there is legal authorization for doing so. 5. Advertising_and Other Public Statements 5.01 Avoidance ofFalse or Deceptive Statements (a) Public statements include but are not limited to paid or unpaid advertising, product endorsements, grant applications, licensing applications, other credentialing applications, brochures, printed matter, directory listings, personal resumes or curricula Vitae, or comments for use in media such as print or electronic transmission, statements in legal proceedings, lectures and public oral presentations, and published materials. Psychologists d0 not knowingly make public statements that are false, deceptive, or fraud- ulent concerning their research, practice, or other work activities or those of persons or organizations with which they are afiliated. (b) Psychologists d0 not make false, deceptive, or fraudulent statements concerning (1) their training, ex- perience, or competence,- (2) their academic degrees; (3) their credentials; (4) their institutional or association aflili- ations; (5) their services; (6) the scientific or clinical ba- sis for, or results or degree of success of, their services; (7) their fees,- or (8) their publications or research findings. (c) Psychologists claim degrees as credentials for their health services only if those degrees (1) were earned from a regionally accredited educational institution or (2) were the basis for psychology licensure by the state in which they practice. 5.02 Statements by Others (a) Psychologists who engage others to create or place public statements that promote their professional practice, products, or activities retain professional respon- sibility for such statements. (b) Psychologists do not compensate employees of press, radio, television, or other communication media in return for publicity in a news item. (See also Standard 1.01, Misuse of Psychologists’ Work.) (c) A paid advertisement relating to psychologists’ activities must be identified or clearly recognizable as such. 5.03 Descriptions ofWorkshops and Non-Degree-Granting Educational Programs To the degree to Which they exercise control, psy- chologists responsible for announcements, catalogs, bro- chures, or advertisements describing workshops, seminars, or other non-degree-granting educational programs ensure that they accurately describe the audience for which the program is intended, the educational objectives, the pre- senters, and the fees involved. 5.04 Media Presentations When psychologists provide public advice or com- ment via print, Internet, or other electronic transmission, 8 Standard 4.04-Standard 5.04 Effective January l, 20 17 -26. they take precautions to ensure that statements (1) are based on their professional knowledge, training, or expe- rience in accord with appropriate psychological literature and practice,- (2) are otherwise consistent With this Ethics Code,- and (3) do not indicate that a professional relation- ship has been established with the recipient. (See also Stan- dard 2.04, Bases for Scientific and Professionaljudgments.) 5.05 Testimonials Psychologists do not solicit testimonials from cur- rent therapy clients/patients or other persons Who because of their particular circumstances are vulnerable to undue influence. 5.06 In-Person Solicitation Psychologists do not engage, directly or through agents, in uninvited in-person solicitation ofbusiness from actual or potential therapy clients/patients or other per- sons who because oftheir particular circumstances are vul- nerable to undue influence. However, this prohibition does not preclude (1) attempting to implement appropriate collateral contacts for the purpose ofbenefiting an already engaged therapy client/patient or (2) providing disaster or community outreach services. 6. Record Keeping_and Fees 6.01 Documentation ofProfessional and Scientific Work and Maintenance ofRecords Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose ofrecords and data relating t0 their profession- al and scientific work in order to ( 1) facilitate provision of services later by them or by other professionals, (2) allow for replication ofresearch design and analyses, (3) meet in- stitutional requirements, (4) ensure accuracy ofbilling and payments, and (5) ensure compliance with law. (See also Standard 4.0 1 , Maintaining Confidentiality.) 6.02 Maintenance, Dissemination, and Disposal of Confidential Records ofProfessional and ScientificWork (a) Psychologists maintain confidentiality in creat- ing, storing, accessing, transferring, and disposing ofrecords under their control, Whether these are written, automated, or in any other medium. (See also Standards 4.01, Maintaining Confidentiality, and 6.01, Documentation of Professional and ScientificWork and Maintenance ofRecords.) (b) If confidential information concerning recipi- ents of psychological services is entered into databases or systems of records available to persons whose access has not been consented to by the recipient, psychologists use coding or other techniques t0 avoid the inclusion of per- sonal identifiers. (c) Psychologists make plans in advance to facilitate the appropriate transfer and to protect the confidentiality ofrecords and data in the event ofpsychologists’ Withdraw- al from positions or practice. (See also Standards 3.12, In- terruption of Psychological Services, and 10.09, Interrup- tion of Therapy.) 6.03 Withholding Records for Nonpayment Psychologists may not withhold records under their control that are requested and needed for a client's/ patient’s emergency treatment solely because payment has not been received. 6.04 Fees and Financial Arrangements (a) As early as is feasible in a professional or scientif- ic relationship, psychologists and recipients of psychologi- cal services reach an agreement specifying compensation and billing arrangements. (b) Psychologists’ fee practices are consistentWith law. (c) Psychologists do not misrepresent their fees. (d) If limitations to services can be anticipated be- cause of limitations in financing, this is discussed with the recipient 0f services as early as is feasible. (See also Stan- dards 10.09, Interruption of Therapy, and 10.10, Terminat- ing Therapy.) (e) If the recipient of services does not pay for ser- vices as agreed, and ifpsychologists intend to use collection agencies or legal measures to collect the fees, psychologists first inform the person that such measures Will be taken and provide that person an opportunity to make prompt pay- ment. (See also Standards 4.05, Disclosures; 6.03, With- holding Records for Nonpayment; and 10.01, Informed Consent to Therapy.) 6.05 Barter with Clients/Patients Barter is the acceptance of goods, services, or other nonmonetary remuneration from clients/patients in return for psychological services. Psychologists may barter only if (1) it is not clinically contraindicated, and (2) the resulting arrangement is not exploitative. (See also Standards 3.05, Multiple Relationships, and 6.04, Fees and Financial Ar- rangements.) 6.06 Accuracy in Reports to Payers and Funding Sources In their reports to payers for services or sources of research funding, psychologists take reasonable steps to ensure the accurate reporting of the nature of the service provided or research conducted, the fees, charges, or pay- ments, and where applicable, the identity of the provider, the findings, and the diagnosis. (See also Standards 4.01, Maintaining Confidentiality; 4.04, Minimizing Intrusions on Privacy; and 4.05, Disclosures.) EfiectiveJanuary l, 20 l7 Standard S.OS-Standard 6.06 9 -27- 6.07 Referrals and Fees When psychologists pay, receive payment from, or divide fees With another professional, other than in an em- ployer-employee relationship, the payment to each is based on the services provided (clinical, consultative, administra- tive, or other) and is not based on the referral itself. (See also Standard 3.09, Cooperation with Other Profession- als.) 7. Education and Training 7.01 Design ofEducation and Training Programs Psychologists responsible for education and train- ing programs take reasonable steps to ensure that the pro- grams are designed to provide the appropriate knowledge and proper experiences, and to meet the requirements for licensure, certification, or other goals for which claims are made by the program. (See also Standard 5.03, Descrip- tions ofWorkshops and Non-Degree-Granting Education- al Programs.) 7.02 Descriptions ofEducation and Training Programs Psychologists responsible for education and train- ing programs take reasonable steps to ensure that there is a current and accurate description of the program content (including participation in required course- or program-re- lated counseling, psychotherapy, experiential groups, con- sulting projects, or community service), training goals and objectives, stipends and benefits, and requirements that must be met for satisfactory completion of the program. This information must be made readily available to all in- terested parties. 7.03 Accuracy in Teaching (a) Psychologists take reasonable steps to ensure that course syllabi are accurate regarding the subject matter to be covered, bases for evaluating progress, and the nature of course experiences. This standard does not preclude an instructor from modifying course content or requirements when the instructor considers it pedagogically necessary or desirable, so long as students are made aware ofthese mod- ifications in a manner that enables them to fulfill course re- quirements. (See also Standard 5.01, Avoidance of False 0r Deceptive Statements.) (b) When engaged in teaching or training, psychol- ogists present psychological information accurately. (See also Standard 2.03, Maintaining Competence.) 7.04 Student Disclosure ofPersonal Information Psychologists do not require students or super- visees to disclose personal information in course- or pro- gram-related activities, either orally or in writing, regarding sexual history, history of abuse and neglect, psychologi- cal treatment, and relationships with parents, peers, and spouses or significant others except if (1) the program or training facility has clearly identified this requirement in its admissions and program materials or (2) the information is necessary to evaluate or obtain assistance for students whose personal problems could reasonably be judged to be preventing them from performing their training- or profes- sionally related activities in a competent manner or posing a threat to the students or others. 7.05 Mandatory Individual or Group Therapy (a) When individual or group therapy is a program or course requirement, psychologists responsible for that program allow students in undergraduate and graduate programs the option of selecting such therapy from prac- titioners unaffiliated with the program. (See also Standard 7.02, Descriptions ofEducation and Training Programs.) (b) Faculty who are or are likely to be responsible for evaluating students’ academic performance do not themselves provide that therapy. (See also Standard 3.05, Multiple Relationships.) 7.06 Assessing Student and Supervisee Performance (a) In academic and supervisory relationships, psy- chologists establish a timely and specific process for pro- viding feedback to students and supervisees. Information regarding the process is provided to the student at the be- ginning of supervision. (b) Psychologists evaluate students and supervisees on the basis oftheir actual performance on relevant and es- tablished program requirements. 7.07 Sexual Relationships with Students and Supervisees Psychologists do not engage in sexual relationships With students or supervisees Who are in their department, agency, or training center or overWhom psychologists have or are likely to have evaluative authority. (See also Standard 3.05, Multiple Relationships.) 8. Research and Publication 8.0 1 Institutional Approval When institutional approval is required, psycholo- gists provide accurate information about their research proposals and obtain approval prior to conducting the re- search. They conduct the research in accordance With the approved research protocol. 8.02 Informed Consent to Research (a) When obtaining informed consent as required in Standard 3.10, Informed Consent, psychologists inform participants about ( 1) the purpose of the research, expect- 10 Standard 6.07-Standard 8.02 Effective January l, 20 17 -28. ed duration, and procedures; (2) their right to decline to participate and to withdraw from the research once par- ticipation has begun; (3) the foreseeable consequences of declining or withdrawing; (4) reasonably foreseeable fac- tors that may be expected to influence their Willingness to participate such as potential risks, discomfort, or adverse effects; (S) any prospective research benefits; (6) limits of confidentiality; (7) incentives for participation; and (8) Whom to contact for questions about the research and re- search participants’ rights. They provide opportunity for the prospective participants to ask questions and receive answers. (See also Standards 8.03, Informed Consent for Recording Voices and Images in Research,- 8.05, Dispens- ing With Informed Consent for Research; and 8.07, Decep- tion in Research.) (b) Psychologists conducting intervention research involving the use of experimental treatments clarify to par- ticipants at the outset of the research (1) the experimental nature of the treatment; (2) the services that will or will not be available to the control group (s) if appropriate; (3) the means by which assignment to treatment and control groups will be made; (4) available treatment alternatives if an individual does not wish to participate in the research or Wishes to withdraw once a study has begun; and (5) com- pensation for or monetary costs ofparticipating including, if appropriate, whether reimbursement from the partici- pant or a third-party payor will be sought. (See also Stan- dard 8.02a, Informed Consent to Research.) 8.03 Informed Consent for Recording Voices and Images in Research Psychologists obtain informed consent from re- search participants prior to recording their voices or images for data collection unless (1) the research consists solely of naturalistic observations in public places, and it is not anticipated that the recording Will be used in a manner that could cause personal identification or harm, or (2) the re- search design includes deception, and consent for the use of the recording is obtained during debriefing. (See also Standard 8.07, Deception in Research.) 8.04 Client/Patient, Student, and Subordinate Research Participants (a) When psychologists conduct research with cli- ents/patients, students, or subordinates as participants, psychologists take steps to protect the prospective par- ticipants from adverse consequences of declining or With- drawing from participation. (b) When research participation is a course require- ment or an opportunity for extra credit, the prospective participant is given the choice of equitable alternative ac- tivities. 8.05 Dispensing with Informed Consent for Research Psychologists may dispense with informed consent only (1) where research would not reasonably be assumed to create distress or harm and involves (a) the study ofnor- mal educational practices, curricula, or classroom manage- ment methods conducted in educational settings; (b) only anonymous questionnaires, naturalistic observations, or archival research for Which disclosure of responses would not place participants at risk of criminal or civil liability or damage their financial standing, employability, or reputa- tion, and confidentiality is protected; or (c) the study of factors related to job or organization effectiveness conduct- ed in organizational settings for Which there is no risk to participants’ employability, and confidentiality is protected or (2) where otherwise permitted by law or federal or insti- tutional regulations. 8.06 Oflering Inducements for Research Participation (a) Psychologists make reasonable efforts to avoid oflering excessive or inappropriate financial or other in- ducements for research participation when such induce- ments are likely to coerce participation. (b) When offering professional services as an in- ducement for research participation, psychologists clarify the nature of the services, as well as the risks, obligations, and limitations. (See also Standard 6.05, Barter with Cli- ents/Patients.) 8.07 Deception in Research (a) Psychologists do not conduct a study involv- ing deception unless they have determined that the use of deceptive techniques is justified by the study’s significant prospective scientific, educational, or applied value and that effective nondeceptive alternative procedures are not feasible. (b) Psychologists do not deceive prospective partic- ipants about research that is reasonably expected to cause physical pain or severe emotional distress. (c) Psychologists explain any deception that is an integral feature ofthe design and conduct ofan experiment to participants as early as is feasible, preferably at the con- clusion of their participation, but no later than at the con- clusion of the data collection, and permit participants to Withdraw their data. (See also Standard 8.08, Debriefing.) 8.08 Debriefing (a) Psychologists provide a prompt opportunity for participants to obtain appropriate information about the nature, results, and conclusions of the research, and they take reasonable steps to correct any misconceptions that participants may have ofwhich the psychologists are aware. EfiectiveJanuary l, 20 l7 Standard 8.03-Standard 8.08 l l -29. (b) If scientific or humane values justify delaying or withholding this information, psychologists take reason- able measures to reduce the risk ofharm. (c) When psychologists become aware that research procedures have harmed a participant, they take reasonable steps to minimize the harm. 8.09 Humane Care and Use ofAnimals in Research (a) Psychologists acquire, care for, use, and dispose ofanimals in compliance with current federal, state, and lo- cal laws and regulations, and with professional standards. (b) Psychologists trained in research methods and experienced in the care of laboratory animals supervise all procedures involving animals and are responsible for en- suring appropriate consideration of their comfort, health, and humane treatment. (c) Psychologists ensure that all individuals under their supervision who are using animals have received instruction in research methods and in the care, mainte- nance, and handling ofthe species being used, to the extent appropriate to their role. (See also Standard 2.05, Delega- tion ofWork to Others.) (d) Psychologists make reasonable efforts to mini- mize the discomfort, infection, illness, and pain of animal subjects. (e) Psychologists use a procedure subjecting ani- mals to pain, stress, or privation only when an alternative procedure is unavailable and the goal is justified by its pro- spective scientific, educational, or applied value. (f) Psychologists perform surgical procedures un- der appropriate anesthesia and follow techniques to avoid infection and minimize pain during and after surgery. (g) When it is appropriate that an animal’s life be terminated, psychologists proceed rapidly, with an effort to minimize pain and in accordance With accepted proce- dures. 8. 10 Reporting Research Results (a) Psychologists do not fabricate data. (See also Standard S.Ola, Avoidance 0f False or Deceptive State- ments.) (b) If psychologists discover significant errors in their published data, they take reasonable steps to correct such errors in a correction, retraction, erratum, or other ap- propriate publication means. 8. 1 1 Plagiarism Psychologists do not present portions of another’s work or data as their own, even if the other work or data source is cited occasionally. 8.12 Publication Credit (a) Psychologists take responsibility and credit, in- cluding authorship credit, only for work they have actually performed or to which they have substantially contributed. (See also Standard 8.12b, Publication Credit.) (b) Principal authorship and other publication credits accurately reflect the relative scientific or profes- sional contributions of the individuals involved, regardless of their relative status. Mere possession of an institutional position, such as department chair, does not justify author- ship credit. Minor contributions to the research or to the writing for publications are acknowledged appropriately, such as in footnotes or in an introductory statement. (c) Except under exceptional circumstances, a stu- dent is listed as principal author on any multiple-authored article that is substantially based on the student’s doctoral dissertation. Faculty advisors discuss publication credit with students as early as feasible and throughout the re- search and publication process as appropriate. (See also Standard 8.12b, Publication Credit.) 8. 13 Duplicate Publication ofData Psychologists do not publish, as original data, data that have been previously published. This does not pre- clude republishing data when they are accompanied by proper acknowledgment. 8. 14 Sharing Research Data for Verification (a) After research results are published, psycholo- gists d0 not withhold the data on which their conclusions are based from other competent professionals who seek to verify the substantive claims through reanalysis and who intend to use such data only for that purpose, provided that the confidentiality ofthe participants can be protected and unless legal rights concerning proprietary data preclude their release. This does not preclude psychologists from re- quiring that such individuals or groups be responsible for costs associated With the provision ofsuch information. (b) Psychologists Who request data from other psy- chologists to verify the substantive claims through reanaly- sis may use shared data only for the declared purpose. Re- questing psychologists obtain prior written agreement for all other uses ofthe data. 8. 15 Reviewers Psychologists Who review material submitted for presentation, publication, grant, or research proposal re- view respect the confidentiality of and the proprietary rights in such information ofthose Who submitted it.9m 9.01 Bases forAssessments (a) Psychologists base the opinions contained in their recommendations, reports, and diagnostic 0r evalu- ative statements, including forensic testimony, on informa- 12 Standard 8.09-Standard 9.01 Effective January l, 20 17 -30. tion and techniques suflicient to substantiate their findings. (See also Standard 2.04, Bases for Scientific and Profes- sionalJudgments.) (b) Except as noted in 9.01c, psychologists provide opinions ofthe psychological characteristics ofindividuals only after they have conducted an examination of the in- dividuals adequate to support their statements or conclu- sions. When, despite reasonable efforts, such an examina- tion is not practical, psychologists document the efiorts they made and the result of those efforts, clarify the prob- able impact of their limited information on the reliability and validity of their opinions, and appropriately limit the nature and extent of their conclusions or recommenda- tions. (See also Standards 2.01, Boundaries of Compe- tence, and 9.06, Interpreting Assessment Results.) (c) When psychologists conduct a record review or provide consultation or supervision and an individual examination is not warranted or necessary for the opinion, psychologists explain this and the sources ofinformation on Which they based their conclusions and recommendations. 9.02 Use ofAssessments (a) Psychologists administer, adapt, score, interpret, or use assessment techniques, interviews, tests, or instru- ments in a manner and for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application ofthe techniques. (b) Psychologists use assessment instruments whose validity and reliability have been established for use With members of the population tested. When such valid- ity or reliability has not been established, psychologists describe the strengths and limitations of test results and interpretation. (c) Psychologists use assessment methods that are appropriate to an individual’s language preference and competence, unless the use ofan alternative language is rel- evant to the assessment issues. 9.03 Informed Consent in Assessments (a) Psychologists obtain informed consent for as- sessments, evaluations, or diagnostic services, as described in Standard 3.10, Informed Consent, except When ( 1) test- ing is mandated by law or governmental regulations; (2) informed consent is implied because testing is conducted as a routine educational, institutional, or organizational activity (e.g., When participants voluntarily agree to assess- ment when applying for a job),- or (3) one purpose of the testing is to evaluate decisional capacity. Informed consent includes an explanation of the nature and purpose of the assessment, fees, involvement ofthird parties, and limits of confidentiality and suficient opportunity for the client/pa- tient to ask questions and receive answers. (b) Psychologists inform persons with questionable capacity to consent or forWhom testing is mandated by law or governmental regulations about the nature and purpose of the proposed assessment services, using language that is reasonably understandable to the person being assessed. (c) Psychologists using the services of an inter- preter obtain informed consent from the client/patient to use that interpreter, ensure that confidentiality of test re- sults and test security are maintained, and include in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, discussion of any limitations on the data obtained. (See also Standards 2.05, Delegation of Work to Others; 4.01, Maintaining Confi- dentiality; 9.01, Bases for Assessments; 9.06, Interpreting Assessment Results; and 9.07, Assessment by Unqualified Persons.) 9.04 Release ofTest Data (a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/ patient statements and behavior during an examination. Those portions of test materials that include client/pa- tient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation ofthe data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.1 1, Maintaining Test Security.) (b) In the absence of a client/patient release, psy- chologists provide test data only as required by law or court order. 9.05 Test Construction Psychologists Who develop tests and other assess- ment techniques use appropriate psychometric procedures and current scientific or professional knowledge for test de- sign, standardization, validation, reduction or elimination ofbias, and recommendations for use. 9.06 Interpreting Assessment Results When interpreting assessment results, including automated interpretations, psychologists take into account the purpose of the assessment as well as the various test factors, test-taking abilities, and other characteristics ofthe person being assessed, such as situational, personal, linguis- tic, and cultural difierences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations. They indicate any significant limitations oftheir interpreta- tions. (See also Standards 2.01b and c, Boundaries ofCom- petence, and 3.01, Unfair Discrimination.) EfiectiveJanuary l, 20 l7 Standard 9.02-Standard 9.06 l3 -31. 9.07 Assessment by Unqualified Persons Psychologists do not promote the use ofpsycholog- ical assessment techniques by unqualified persons, except When such use is conducted for training purposes With ap- propriate supervision. (See also Standard 2.05, Delegation ofWork to Others.) 9.08 Obsolete Tests and Outdated Test Results (a) Psychologists do not base their assessment or intervention decisions or recommendations on data or test results that are outdated for the current purpose. (b) Psychologists do not base such decisions or rec- ommendations on tests and measures that are obsolete and not useful for the current purpose. 9.09 Test Scoring and Interpretation Services (a) Psychologists Who ofler assessment or scor- ing services to other professionals accurately describe the purpose, norms, validity, reliability, and applications of the procedures and any special qualifications applicable to their use. (b) Psychologists select scoring and interpretation services (including automated services) on the basis of evi- dence ofthe validity ofthe program and procedures as well as on other appropriate considerations. (See also Standard 2.01b and c, Boundaries of Competence.) (c) Psychologists retain responsibility for the ap- propriate application, interpretation, and use ofassessment instruments, whether they score and interpret such tests themselves or use automated or other services. 9. 10 Explaining Assessment Results Regardless of Whether the scoring and interpreta- tion are done by psychologists, by employees or assistants, or by automated or other outside services, psychologists take reasonable steps to ensure that explanations of results are given to the individual or designated representative un- less the nature of the relationship precludes provision of an explanation of results (such as in some organizational consulting, preemployment or security screenings, and fo- rensic evaluations), and this fact has been clearly explained to the person being assessed in advance. 9. 1 1 Maintaining Test Security The term test materials refers to manuals, instru- ments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable eflorts to main- tain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code. 10. Therapy 10.01 Informed Consent to 'lherapy (a) When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent, psychol- ogists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide suflicient opportunity for the client/patient to ask questions and receive answers. (See also Standards 4.02, Discussing the Limits of Confi- dentiality, and 6.04, Fees and Financial Arrangements.) (b) When obtaining informed consent for treat- ment forwhich generally recognized techniques and proce- dures have not been established, psychologists inform their clients/patients of the developing nature 0f the treatment, the potential risks involved, alternative treatments that may be available, and the voluntary nature oftheir participation. (See also Standards 2.016, Boundaries ofCompetence, and 3.10, Informed Consent.) (c) When the therapist is a trainee and the legal re- sponsibility for the treatment provided resides With the su- pervisor, the client/patient, as part ofthe informed consent procedure, is informed that the therapist is in training and is being supervised and is given the name ofthe supervisor. 10.02 Therapy Involving Couples or Families (a) When psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they take rea- sonable steps to clarify at the outset (1) which of the in- dividuals are clients/patients and (2) the relationship the psychologist Will have With each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained. (See also Standard 4.02, Discussing the Limits of Confidential- itY-) (b) If it becomes apparent that psychologists may be called on to perform potentially conflicting roles (such as family therapist and then witness for one party in di- vorce proceedings), psychologists take reasonable steps to clarify and modify, or withdraw from, roles appropriately. (See also Standard 3.050, Multiple Relationships.) 10.03 Group Therapy When psychologists provide services to several per- sons in a group setting, they describe at the outset the roles and responsibilities of all parties and the limits of confiden- tiality. l4 Standard 9.07-Standard 10.03 Effective January l, 20 17 -32. 10.04 Providing Therapy to Those Served by Others In deciding whether to offer or provide services to those already receiving mental health services elsewhere, psychologists carefully consider the treatment issues and the potential client’s/patient’s welfare. Psychologists dis- cuss these issues with the client/patient or another legally authorized person on behalf of the client/patient in order to minimize the risk ofconfusion and conflict, consult with the other service providers When appropriate, and proceed With caution and sensitivity to the therapeutic issues. 10.05 Sexual Intimacies with Current Therapy Clients/Patients Psychologists do not engage in sexual intimacies With current therapy clients/patients. 10.06 Sexual Intimacies with Relatives or Significant Others of Current Therapy Clients/Patients Psychologists do not engage in sexual intimacies with individuals they know t0 be close relatives, guardians, or significant others of current clients/patients. Psycholo- gists do not terminate therapy to circumvent this standard. 10.07 'lherapywith Former Sexual Partners Psychologists do not accept as therapy clients/pa- tients persons with whom they have engaged in sexual in- timacies. 10.08 Sexual Intimacies with Former Therapy Clients/Patients (a) Psychologists do not engage in sexual intimacies with former clients/patients for at least two years after ces- sation or termination oftherapy. (b) Psychologists do not engage in sexual intimacies with former clients/patients even after a two-year interval except in the most unusual circumstances. Psychologists who engage in such activity after the two years following cessation or termination oftherapy and ofhaving no sexual contact With the former client/patient bear the burden of demonstrating that there has been no exploitation, in light of all relevant factors, including (1) the amount oftime that has passed since therapy terminated; (2) the nature, dura- tion, and intensity of the therapy; (3) the circumstances of termination; (4) the client’s/patient’s personal history; (5) the client’s/patient’s current mental status; (6) the likeli- hood of adverse impact on the client/patient; and (7) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a posttermination sexual or romantic relationship with the client/patient. (See also Standard 3.05, Multiple Relation- ships.) 10.09 Interruption ofTherapy When entering into employment or contractual re- lationships, psychologists make reasonable efforts to pro- vide for orderly and appropriate resolution of responsibil- ity for client/patient care in the event that the employment or contractual relationship ends, with paramount consid- eration given to the welfare of the client/patient. (See also Standard 3.12, Interruption of Psychological Services.) 10. 10 Terminating Therapy (a) Psychologists terminate therapy When it be- comes reasonably clear that the client/patient no longer needs the service, is not likely to benefit, or is being harmed by continued service. (b) Psychologists may terminate therapy when threatened or otherwise endangered by the client/patient or another person with whom the client/patient has a re- lationship. (c) Except Where precluded by the actions of cli- ents/patients or third-party payers, prior to termination psychologists provide pretermination counseling and sug- gest alternative service providers as appropriate. EfiectiveJanuary l, 20 l7 Standard 10.04-Standard 10. 10 15 -33. AMENDMENTS TO THE 2002 “ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT” IN 2010AND 2016 20 10 Amendments Introduction and Applicability If psychologists’ ethical responsibilities conflict With law, regulations, or other governing legal authority, psychologists make known their commitment to this Eth- ics Code and take steps to resolve the conflict 1n a respon- sible manner. ffthe-conflTctmmresofvfifie‘vra-sud‘rmeany regulatrmror-oflTer-gcvermng-atrthonty in keeping With basic principles ofhuman rights. 1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature ofthe conflict, make known their commitment to the Ethics Code; and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. if-the . . . ) . H 1 . E]])I}].g) l} , Under no circumstances may this standard be used to justify or defend Violating human rights. 1.03 Conflicts Between Ethics and Organizational Demands If the demands of an organization with which psy- chologists are afliliated or for whom they are workingfl m conflict With this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment t0 the Ethics Code, andWha take reasonable steps to resolve the conflict consistent With the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend Violating human rights. 20 l6 Amendment 3.04 Avoiding Harm (g) Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, re- search participants, organizational clients, and others with whom theywork, and to minimize harm Where it is foresee- able and unavoidable. (b) Psychologists do not participate in, facilitate, as- sist. or otherwise engage in torture, defined as anV act by which severe pain or suffering. Whether physical or mental, is intentionally inflicted on a person, or in any other cruel, inhuman. or degrading behavior that violates 3.04a. l6 Amendments to the 2002 Ethics Code in 2010 and 2016 Effective January l, 20 17 -34. A- I"‘I‘ HI. II» «:ll -35- AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Sfreef, NE Washington, DC 20002-4242 www.opa.org Printed in the United States of America Archives of Clinical Neuropsychology, Vol. 15, No. 5, pp. 379-380, 2000 Copyright © 2000 National Academy 0f Neuropsychology® Pergamon Printed in the USA. All rights reserved0887-6177/00 $-see front matter PII 80887-6177(00)00053-6 Presence 0f Third Party Observers During Neuropsychological Testing Official Statement of the National Academy of Neuropsychology Approved 5/1 5/99 Forensic neuropsychological evaluations are often constrained by the demand that a third party observer be present during the course of interview and formal testing. This demand may originate from counsel’s desire t0 ensure that the neuropsychologist does not interrogate or unfairly question the plaintiff With respect to issues 0f liability and t0 ascertain if test procedures are accurately administered. In general, neuropsychologists should have the right to carry out their examination in a manner that will not in any way jeopardize, influence or unduly pressure their normal practice. The presence 0f a third party observer during the administration of formal test proce- dures is inconsistent with recommendations promulgated in The Standards for Educa- tional and Psychological Testing (APA, 1985) and Anastasi (1988), that the psychologi- cal testing environment be distraction free. More recently, standardized test manuals (for example, The WAIS-III, WMS-III Technical Manual; The Psychological Corpora- tion, 1997) have specifically stated that third party observers should be excluded from the examination room t0 keep it free from distraction. The presence of a third party ob- server in the testing room is also inconsistent With the requirements for standardized test administration as set forth in the APA’s Ethical Principles Of Psychologists and Code Of Conduct (APA, 1992) in that it creates the potential for distraction and/or interrup- tion 0f the examination (McSweeny et a1., 1998). A second issue that relates t0 the potential influence of the presence of a third party observer is the reliance upon normative data. Neuropsychological test measures have not been standardized in the presence 0f an observer. In fact, neuropsychological test measures have been standardized under a specific set 0f highly controlled circumstances that did not include the presence 0f a third party observer. The presence of a third party observer introduces an unknown variable into the testing environment Which may pre- vent the examinee’s performance from being compared t0 established norms and poten- tially precludes valid interpretation of the test results (McCaffrey, Fisher, Gold, & Lynch, 1996). Observer effects can be such that performance 0n more complex tasks de- clines, in contrast to enhanced performance on overlearned tasks, leading t0 a spuriously magnified picture of neuropsychological deficit (McCaffrey et a1., 1996). Likewise, 0b- servation of an examination being conducted for a second opinion may fundamentally alter the test session, in comparison t0 the initial examination that the patient has al- ready undergone, potentially creating an adversarial atmosphere, and increasing the risk of motivational effects related to secondary gain. Observer effects can be magnified by the presence 0f involved parties Who have a significant relationship With the patient (e.g. 379 -36- 5mg Jeqweldes 90 uo Jesn MBqu-I |eogpew geugs SJepeQ Aq ozaL/ezg/g/gLnoensqe-epgue/uoe/wm'dnoogwepeoeusduq Luou pepeolumoa 380 NAN Policy and Planning Committee legal representatives who have a stake in the outcome of the examination; cf. Binder and Johnson-Greene, 1995). Thus, the presence of a third party observer during formal test- ing may represent a threat to the validity and reliability of the data generated by an ex- amination conducted under these circumstances, and may compromise the valid use of normative data in interpreting test scores. Observer effects also extend to situations such as court reporters, attorneys, attorney representatives, viewing from behind one-way mirrors and to electronic means of observation, such as the presence of a camera which can be a significant distraction (McCaffrey et al., 1996). Electronic recording and other observation also raises test security considerations that are detailed in the National Academy of Neuropsychology’s position statement on Test Security. It should be noted that there are circumstances that support the presence of a neutral, non-involved party in nonforensic settings. One situation might be when students or other professionals in psychology observe testing as part of their formal education. These trainees have sufficient instruction and supervision in standardized measurement and clinical procedures, such that their presence would not interfere with the assessment process. Other situations might include a parent’s calming presence during an evaluation of a child. The weight of accumulated scientific and clinical literature with respect to the issue of third party observers in the forensic examination provides clear support for the official position of the National Academy of Neuropsychology that neuropsychologists should strive to minimize all influences that may compromise accuracy of assessment and should make every effort to exclude observers from the evaluation. The NAN Policy and Planning Committee Bradley Axelrod, Ph.D. Jeffrey Barth, Ph.D., Chair David Faust, Ph.D. Jerid Fisher, Ph.D. Robert Heilbronner, Ph.D. Glenn Larrabee, Ph.D. Neil Pliskin, Ph.D., Vice Chair Cheryl Silver, Ph.D. REFERENCES American Psychological Association (1985). Standards for Educational and Psychological Testing . Washing- ton, DC: Author. American Psychological Association (1992). Ethical Principles of Psychologists and Code of Conduct. The American Psychologist , 47 , 1597-1611. Anastasi, A. (1988). Psychological Testing (6th ed.), New York: Macmillan Publishing Company. Binder, L. M., & Johnson-Greene, D. (1995). Observer effects on neuropsychological performance: A case report. The Clinical Neuropsychologist , 9 , 74-78. McCaffrey, R. J., Fisher, J. M., Gold, B. A., & Lynch, J. K. (1996). Presence of third parties during neuropsy- chological evaluations: Who is evaluating whom? The Clinical Neuropsychologist , 10 , 435-449. McSweeny, A. J., Becker, B. C., Naugle, R. I., Snow, W. G., Binder, L. M. & Thompson, L. L. (1998). Ethical issues related to third party observers in clinical neuropsychological evaluations. The Clinical Neuropsy- chologist , 12 (4), 552-559. The Psychological Corporation (1997). The WAIS-III, WMS-III Technical Manual . San Antonio: Author. D ow nloaded from https://academ ic.oup.com /acn/article-abstract/15/5/379/1920 by C edars Sinai M edical Library user on 08 Septem ber 2019 -37- -38- The Clinical Neuropsychologist 2002, V01. 16, N0. 3, pp. 407-412 1385-4046/02/1603-407$16.00 © Swets & Zeitlinger When the Third Party Observer 0f a Neuropsychological Evaluation is an Audio-Recorder Marios Constantinou, Lee Ashendorf, and Robert J. McCaffrey Department 0f Psychology, University at Albany, State University 0f New York, Albany, NY, USA ABSTRACT The presence 0f third parties during neuropsychological evaluations is an issue 0f concern for contemporary neuropsychologists. Previous studies have reported that the presence 0f an observer during neuropsycho- logical testing alters the performance Of individuals under evaluation. The present study sought t0 investigate whether audio-recording affects the neuropsychological test performance 0f individuals in the same way that third party observation does. In the presence 0f an audio-recorder the performance 0f the participants 0n memmy tests declined. Performance 0n motor tests, 0n the Other hand, was not affected by the presence 0f an audiO-recorder. The implications 0f these findings in forensic neuropsychological evaluations are discussed. The presence 0f an observer during neuropsycho- logical evaluations is not unusual; this is espe- cially true for evaluations that are conducted for litigious reasons (McSweeny ct 211., 1998). A large number of social psychology studies exhibited that the presence 0f an 0bserver(s) tends to affect positively 0r negatively the task performance 0f individuals (Guerin, 1986). These findings are tightly related t0 the phenomenon 0f social facilitation, Which is generally defined as the tendency of an individual t0 exhibit enhanced performance on simple tasks and inhibited performance on complex tasks in the presence of observers. This phenomenon is also called reactivity, which is defined in similar lines as “the tendency 0f the behavior t0 Change when and because it is under observation” (Russell, Russell, & Midwinter, 1992). Clearly then, the presence 0f an 0bserver(s) during neuropsychological evalua- tions could be a cause 0f unwanted headaches, many 0f which will be discussed in more depth shortly, for neuropsychologists who are concern- ed with the validity 0f Obtained test scores and the Violation 0f standardized test administration. For these reasons, the National Academy of Neuropsychology (NAN) recommends that th€ presenca 0f third party Observers during neuro- psychological testing should be avoided when possible (Axelrod et 211., 2000). In addition, in 1999 the American Psychological Association (APA), along with the American Educational Research Association (AERA) and the National Council 0n Measurement in Education (NCME), dictated in the Standards for Educational and Psychological Tests that the administrations of tests should adhere t0 standard procedures set by test publishers and that testing should be carried out with no distraction. As a whole, today’s neuropsychologists aim t0 obtain test results that are not influenced by extraneous factors so that they can draw the most immaculate conclus- ions possible about evaluated individuals. The Address correspondence t0: Marios Constantinou 01‘ Robert J. McCaffrey, Department 0f Psychology, University at Albany, SUNY, Social Sciences 112, 1400 Washington Avenue, Albany, NY 12222, USA. Tel.: +1-518-442-5098. Fax: +1-518-442-5098. E-mail: mc3067@albany.edu 0r rm188@albany.edu Accepted for publication: June 27, 2002. -39- 408 MARIOS CONSTANTINOU ET AL. influence 0f third party observation during neuro- psychological testing can be determined by exam- ining the findings 0f past neuropsychologica] studies. Binder and Johnson-Greene (1995) demonstrat- ed, in a single case study, that the performance of an epileptic woman under neuropsychological evaluation deteriorated significantly when her mother was present in the examination room. Of course the limitations 0f a single case study are obvious. Nevertheless, similar outcomes were reported by group studies. Kehrer, Sanchez, Habif, Rosenbaum, and Townes (2000) found that participants’ performance was significantly poorer when a “significant-other” observer was present during the administration of neuropsycho- logical measures. Specifically, this study demon- strated that the performance 0f participants 0n attention, processing speed, and verbal fluency measures was negatively impacted by the pre- sence 0f a “significant-Other” observer; no such influence was observed on motor and cognitive flexibility tests. Lynch (1997) found that a third party observer negatively affected the perform- ance 0f participants 0n a subscale 0f the Wechsler Memory Scale (WMS) that involved delayed recall. As in the previous study, Lynch (1997) did not find any third party observer effects for motor tests (1.6., Finger Tapping Test, Grip Strength, and Grooved Pagboard Test). In short, all 0f the above studies reported that the presence of a third party 0bserver(s) appears t0 exert some negative influence 0n the neuropsychological test performance 0f individuals. MCSWeeny et a1. (1998) proposed that the need for the presence 0f a third party observer (e.g., a lawyer 0r their representative) in the examination room during neuropsychological evaluation may be eliminated if the potential third party obser- ver(s) could have access t0 a video- 0r audio- recording 0f the neuropsychological evaluation. Then again, there is n0 evidence 0n how such recordings would affect the examinees’ neuro- psychological test performance. Outside of the neuropsychological area, contrasting results were reported with respect t0 the effects 0f audiovisual recording 0n task performance. For example, Cohen (1979) and Cohen and Davis (1973) reported that audiovisual recording had an auto- nomic arousing effect, measured by psychophy- siological instruments, that, in turn, had a negative impact 0n the performance 0f participants who were asked t0 solve a series 0f word problems. On the other hand, Lichton and Waehler (1999) demonstrated that audiovisual recording did not affect participants’ scores 0n assessment mea- sures 0f anxiety. The present study was conducted in an effort t0 investigate whether audio-recording affects indi- viduals’ neuropsychological test performance. Forty undergraduates were assigned t0 one 0f two groups, either the Tape-Recording Aware group 0r the Non-Aware group, who were not aware that responses were tape-recorded. The participants were administered selected subtests of the Memory Assessment Scales (MAS; Williams, 1991) and a series 0f motor tests. It was hypothesized that indirect Observation (1.6., through the audiO-recording) would produce results that resemble those reported by Lynch (1997) and Kehrer et a1. (2000), in which a third party was observing the performance 0f partici- pants. Specifically, it was hypothesized that in the Tape-Recording Aware group the participants” performance 0n the memory subtests 0f the MAS would be poorer than that 0f the participants in the Non-Aware group, while it was hypothe- sized that n0 group differences would be found 0n the motor tests. METHOD Participants After obtaining approval from the Human Subjects Institutional Review Board, 42 undergraduate students were recruited from introductory psychology classes. Participants were randomly assigned to one 0f two groups, either the Tape-Recording Aware group 0r the Non-Aware group. Participants’ ages ranged from 18 t0 45 years 0f age, M:20.03, SD24.58. In addition, participants’ class standing ranged from freshman to senior year, While their mean college education was 1.65 years, SD : .98. Two of the participants requested that their data not be used for the study; therefore, the total number 0f participants was 4O (22 men and 18 women) with 20 participants in each group. Indepen- dent sample I tests and chi-square tests did not reveal any demographic differences between the two groups with respect t0 age, gender, 0r class standing. -40- WHEN THE OBSERVER IS AN AUDIO RECORDER 409 Material Each participant was administered a brief battery 0f measures in the following order: 1. List Learning (LL; from the Memory Assessment Scales - MAS, Williams, 1991). Involves the verbal presentation 0f 12 common words, each belonging to one 0f the four categories: countries, birds, colors, 0r cities. The list is verbally presented t0 participants up t0 six times or until all 12 words are successfully recalled 0n a test trial. Each list presentation is followed by a test trial, 0r recall trial, during which participants attempt t0 recall as many list words as possible. The total score (List Acquisition Score, LAS) 0f the participants consists of the total number 0f words that were recalled successfully. LL represents an immediate memory measure and a measure of the ability to learn over consecutive presentations of the same material. List Recall (LR; MAS, Williams, 1991). During the administration 0f this subtest the participants are required t0 recall the words that were presented in the LL subtest. In addition, the participants are asked t0 recall the words that belong t0 each category (countries, birds, colors, or cities), when the examiner prompts them t0 do so; this subsection is called Cued Recall (CR). The participants receive a List Recall Score (LRS) and a Cued Recall Score (CRS) 0n this subtest 0f the MAS. In a typical MAS administration, LL and LR are separated by the administration 0f another MAS subtest, Which lasts about 5 min. In this study, the administration of LL and LR were also separated by an interval 0f 5 min. Hence, LR can be considered as a short-term mem- ory measure. CR is a measure 0f the ability t0 cluster similar information into meaningful categories. 3. Finger Tapping. The Finger Tapping test from [he Halstead-Reitan Neuropsychological Battery for Adults (HRNB-A) was administered and scored following the protocol outlined in Reitan and Wolfson (1993, p. 63) 4. Grooved Pegboard (as described in Lezak, 1995, p. 683). In this motor test the participants are asked to match the groove of pegs With the grooves 0f a pegboard and place the pegs into the holes of the pegboard as fast as possible. The pegboard consists 0f five rows and five columns of holes (for a total 0f 25 holes). The total time spent in placing the pegs into the pegboard and the total number 0f pegs dropped are the measures of performance on this test. For this study the Grooved Pegboard score consisted 0f a combination of the right and left hands’ time t0 complete the task. The total number 0f pegs dropped was not used in the analyses 0f the data since only 4 0f the participants dropped any pegs (each 0f them dropped only one 01' two pegs). E0 5. Grip Strength. This motor test from the HRNB-A was administered and scored following the protocol outlined in Reitan and Wolfson (1993, p. 56). 6 Verbal Span, (VS; MAS, Williams, 1991). This test consists 0f two sections. In the first subsection, the participants are verbally presented with a series of single-digit integers that they subsequently attempt t0 recall in the correct order. In the second sub- section, the participants are again verbally presented with series 0f single-digit integers that they have to recall in reverse order. The longest series recalled 0n both sections are added together for a composite score (Verbal Span Score, VSS). This is a measure of immediate recall, given that the recall 0f the digits comes immediately after their presentation. 7. Delayed List Recall (DLR; MAS, Williams, 199]). DLR administration is identical t0 the administra- tion 0f the LR subtest, Which includes the recall 0f the lZ-word list and a cued recall. During a typical administration 0f the MAS, LR and DLR are sepa- rated by an interval 0f 15-20 min, during Which other MAS subtests are administered. In this study, DLR and LR were separated by the administration 0f three motor tests and VS, whose administration also lasted about 15~20 min. Hence, DLR can be considered a long-term memory measure. A Delayed List Recall Score (DLRS) and a Delayed Cued Recall Score (DCRS) are obtained in DLR in the same fashion as LRS and CRS, respectively, in the LR subtest. Procedure A11 0f the participants’ answers were audio-taped in order t0 increase the reliability 0f the scoring of the memory tests. The experimenter placed an audio- recorder (audio-recording device’s measures: 10cm>< 5cm) in close proximity (about 45 cm away) t0 the participants 0f the Tape-Recording Aware group. In the Non-Aware group the audio-recorder was hidden under the assessment table. In both conditions, the audio- l‘ecording commenced after the participants signed a consent form. The Tape-Recording Aware participants were informed that the session was going t0 be audio- recorded, while the Non-Aware participants ware not informed that their responses were being recorded. Each participant was administered a total of seven tests and received a total 0f nine scores (LAS, LRS, CRS, Finger Tapping, Grooved Pegboard, Grip Strength, VSS, DLRS, and DCRS), which constituted the dependent variables 0f the study. The total testing was approximately 40-45 min. At the end 0f the experiment, the participants in both groups were debriefed and asked whether they would allow the experimenter t0 use their audio-taped data. As mentioned above, only two participants, from the Non- Aware condition, requested that their data not be used in the study. -41- 410 MARIOS CONSTANTINOU ET AL. RESULTS A one-way Multivariate Analysis of Variance (MANOVA) was conducted in order to deter- mine the effects 0f the presence 0f an audio- recorder 0n the participants’ neuropsychological test performance. The one-way MANOVA was significant, Wilks’ A: .588, F(9, 30) = 2.34, p < .05, 7722.41; the multivariate observed power was .82. Subsequently, a series 0f one-way Analyses 0f Variance (ANOVA) were conducted on the nine dependent variables. After applying the Bonferroni correction for control 0f Type I error for multiple pair-wise comparisons, each one-way ANOVA was tested at the .006 level (.05/9). These follow-up tests revealed that the Non-Aware group’s scores were significantly higher than the Tape-Recording Aware group’s scores 0n four 0f the six MAS scores earned: (a) List Acquisition Score (LAS; MS=225.63, F(l, 38) = 9.66, p < .006), (b) Cued Recall Score (CRS; MS: 15.62, F(l, 38) : 12.59, p < .006), (C) Delayed List Recall Score (DLRS; MS = 9.03, F (1, 38) : 9.09, p < .006), and (d) Delayed Cued Recall Score (DCRS; MS: 15.62, F(1,38): 12.03, p < .006). The means and standard devia- tions 0f the two groups’ performance on the MAS and motor measures are displayed in Table l. N0 significant effects were observed for two MAS scores: Learning Recall Scores (LRS), and Verbal Span Score (VSS). As hypothesized the two groups did not significantly differ With respect t0 the three motor measures (i.e., Finger Tapping, Grooved Pegboard, and Grip Strength). In order t0 assess Which dependent variables were affected more noticeably by the presence 0f an audio-recorder. an effect size was calculated for each dependent variable; 772$ 0f .01, .06, and .14 are generally regarded as small, medium, and large effect sizes, respectively. The effect sizes and corresponding Observed powers for the dependent variables that were significantly affected by the presence 0f an audio-recorder are presented in Table 2. In summary, it appe- ared that both cued recall scores (1.6., CRS, DCRS) were the most affected by the partici- pants’ awareness 0f their responses being audio- recorded. Table 1. Means and Standard Deviations 0f the Two Groups 0n the Nine Dependent Variables (in the Order they were Administered t0 the Participants). Dependent Non-Aware Tape-Recording variable group Aware group M SD M SD LAS 65.15:: 4.09 60.40 5.47 LRS 11.25, .97 10.70 .92 CRS 11.30:} .98 10.05 1.23 Finger Tapping 93.52 12.22 91.09 13.50 Grooved Pegboard 137.98 15.90 146.19 20.69 Grip Strength 79.28 25.12 75.73 18.25 VSS 12‘85m 2.30 11.80 1.77 DLRS 11‘55: .51 10.60 1.31 DCRS 11.60": .75 10.35 1.42 Note. LAS : List Acquisition Score; LRS : List Recall Score; CRS : Cued Recall Score; VSS : Verbal Span Score; DLRS : Delayed List Recall Score; DCRS = Delayed Cued Recall Score. *Denotes that the Non-Aware group’s mean per- formance is significantly better than the Tape- Recording Aware group’s mean performance at the .006 level. Table 2. Effect Sizes and Obsewed Power for the Depen- dent Variables that were Significantly Affected by the presence 0f an Audio-Recorder. Dependent variable Effect size Observed power LAS .20 .86 CRS .25 .93 DLRS .19 .84 DCRS .24 .92 Note. LAS : Learning Acquisition Score; CRS : Cued Recall Score; DLRS : Delayed List Recall Score; DCRS : Delayed Cued Recall Score. DISCUSSION The present study investigated whether 0r not audio-recording in and 0f itself can influence examinees’ performance during neuropsycholo- gical testing. The present study supported the aforementioned hypothesis demonstrating that audio-recording 0f an examinee’s performance during neuropsychological testing is not a benign procedure. In fact, the current findings are in line -42- WHEN THE OBSERVER IS AN AUDIO RECORDER 4] 1 with those 0f previous reports 0n the presence 0f third party observers during neuropsychological testing (e.g., Binder & Johnson-Greene, 1995; Lynch, 1997). Specifically, having the knowledge that their performance was being tape-recorded adversely affected the test performance 0f exam- inees 0n four MAS subtests. As predicted from previous studies, there was no effect on the motor measures in either condition. Probably due t0 the fact that our sample was comprised 0f university students, the performance 0f all participants, 0f both groups, 0n the brief neuropsychological battery fell within the average range - the devia- tions from average were not significant. However, the significant differences between the two groups, that survived the stringent Bonferroni correction for control 0f Type 1 error, are almost certainly not spurious and the detrimental impact 0f audio- recording is Clear. Of course in order t0 extend further the clinical significance and generalizabi- lity of the present findings, future studies 0f this sort should aim at sampling clinical populations with identified neuropsychological impairments. Most neuropsychologists are likely to be faced with requests t0 permit and/or demands t0 allow the presence 0f a third party observer (e.g., an attorney, another clinical neuropsychologist, a paralegal, etc.) during formal neuropsychological testing. Authoritative figures in the area 0f Clinical neuropsychology openly suggest that such requests ought t0 be handled with caution and refused, when possible, as an observer could be a threat t0 the validity 0f the obtained scores, test standardization, and ethical standards of test administration (McCaffrey, Fisher, Gold, & Lynch, 1996; McSweeny et al., 1998). In fact, as mentioned previously, the National Academy 0f Neuropsychology has issued a formal position statement that recommends against the presence of third parties during neuropsychological testing (Axelrod et 211., 2000). According t0 the state- ment, third party Observation during neuropsy- chological assessment may pose a threat to the validity and reliability of the data obtained from such sessions and “may compromise the valid use of normative data in interpreting test scores” (Axelrod et 211., 2000). The NAN statement also points out that Observer effects may materialize due t0 the physical presence 0f other individuals (e.g., an attorney, another neuropsychologist, lab technicians, etc.) 0r even the mere presence 0f electronic recording devices. This study indicated that the indirect presence 0f an Observer, through tape-recording, influenced the neuropsychological test performance of exam- inees. These findings are in accordance with the social facilitation theory, Which suggests that the presence of observers (in the present study the indirect presence) affects performance (Guerin, 1986; McCaffrey et 211., 1996). While McSweeny et a1. (1998) recommended that an alternative t0 third party Observation could be audio 0r audio- visual recording that could be reviewed later by a professional, the present findings indicate that such an alternative does not control for the con- founding effects 0f tape-recording. Attorneys sometimes argue that in order t0 gain both unobtrusiveness and access t0 assess- ment sessions clinical neuropsychologists should tape-record their assessment sessions without the examinee being aware 0f the recording. As men- tioned above, in the present study, two partici- pants from the Non-Aware group requested that their responses not be used in the study after they were debriefed at the end 0f the assessment. Although these two participants represent only about 5% of the total sample, Clinicians should note that the negative feelings 0f some examinees about being audio taped without their approval are rather strong and may even be stronger in clinical settings. The present study investigated only the impact 0f audio-recording; thus, the quantitative and qualitative impact 0f audiovisual recording 0n neuropsychological performance remains untest- ed. The findings from the social facilitation lit- erature regarding the effects 0f audiovisual recording have been inconsistent (e.g., Cohen, 1979; Lichton & Waehler, 1999). Clearly then, additional studies using neuropsychological tests are warranted; future investigations about the impact 0f electronic recording devices may want to expand t0 include a larger variety 0f memory and motor instruments and measures of other areas 0f functioning (e.g., attention, executive functioning, Visuoperceptual functioning, etc). Such expansion may also reveal measures, such as the motor measures in the present study, that -43- 412 MARIOS CONSTANTINOU ET AL. are not influenced by the presence 0f electronic devices, therefore potentially suggesting that (a) such 1neasures are “refistant” t0 the adverse effects 0f electronic recording and (b) portions 0f neuropsychologkxfl tesfing can be recorded \Nfihout pnflflenm. Funhcrnxwe,'fiuure expan- sions 0f the present study should sample clinical popubfions,such asindhdduab “&K)susunned traumatic head injuries, strokes, 0r Other neuro- logicaldanaage,so Hlatthe generahzabihty 0fthe present findings gain more clinical significance. In sunanuuy, neuropsychologfius shouki be aware 0f the issues raised in the present study andsudveto2msmtthelegalconnnunfiyinundep suuuhngtheirnpactfluutheInyfiadtypes0fthfid pnuty observers nlay have 0n.the valkfity 0f an individual’s neuropsychological test performance, REFERENCES American Educational Research Association - AERA, American Psychological Association, & National Council 0n Measurement in Education - NCME. (1999). The Standardsfor Educational and Psycho- logical Testing. Washington, DC: Author. Axelrod, B., Barth, J., Faust, D., Fisher, J., Heilbronner, R., Larrabee, G., Pliskin, N., & Silver, C. (2000). Presence 0f third party Observers during neuropsy- chological testing: Official statement of the National Academy of Neuropsychology. Archives 0f Clinical Neuropsychology, I5, 379-380. Binder, L.M., & Johnson-Greene, D. (1995). Observer effects 0n neuropsychological performance: A case report. The Clinical Neuropsychologist, 9, 74-78. Cohen, J.L. (1979). Social facilitation: Increased evalu- ation apprehension through permanency 0f record. Motivation and Emotion, 3, 19-33. Cohen, J.L., & Davis, J.H. (1973). Effects 0f audience status, evaluation, and time 0f action on perfor- mance with hidden-word problems. Journal 0f Personality and Social Psychology, 27, 74-85. Guerin, B. (1986). Mere presence effects in humans: A review. Journal 0f Experimental Social Psychology, 22, 38-77. Kehrer, C.A., Sanchez? P.N., Habif, U., Rosenbaum, J.G., & Townes, B.D. (2000). Effects 0f a signifi- cant-other Observer 0n neuropsychological test performance. The Clinical Neuropsychologist, l4, 67-71. Lezak, MD. (1995). Neuropsychological assessment (3rd ed.). New York, NY: Oxford University Press. Lichton, Al, & Waehler, C.A. (1999). Exploring the effects 0f tape-recording 0n personality assessment. Psychological Reports, 84, 869-872. Lynch, J.K. (1997). The effect 0f Observer’s presence 0n neuropsychological test performance: A test of the social facilitation phenomenon. Dissertation Abstracts International: Section B: The Sciences and Engineering, 57, 7230. MCCaffrey, R.J., Fisher, J.M., Gold, B.A., & Lynch, J.K. (1996). Presence 0f third parties during neuropsy- chological evaluations: Who is evaluating whom? The Clinical Neuropsychologisl, 10, 435-449. McSweeny, A.J., Becker, B.C., Naugle7 R.I., Snow, W.G., Binder, L.M., & Thompson, L.L. (1998). Ethical issues related t0 the presence 0f third party observers in Clinical neuropsychological evalua- tions. The Clinical Nem‘opsychologist, 12, 552*559. Reitan, R.M., & Wolfson, D. (1993). The Halstead- Reium Neuropsychological Test Battery: Theory and clinical interpretations (2nd ed.). South Tucson, AZ: Neuropsychology Press. Russell, A., Russell, G., & Midwinter, D. (1992). Observer influences on mothers and fathers: Self- 1‘ep0rted influence during a home Observation. Merill-Palmer Quarterly, 38, 263-283. Williams, M.J. (199 1). MAS, MemoryAssessment Scales. Odessa, FL: Psychological Assessment Resources. g Routledge Taylor & Francis Group The Clinical Neuropsychologist ISSN: 1385-4046 (Print) 174441 44 (Online) Journal homepage: https:/lwww.tandfonline.com/loi/ntcn20 Policy Statement on the Presence of Third Party Observers in Neuropsychological Assessments To cite this article: (2001) Policy Statement on the Presence of Third Party Observers in Neuropsychological Assessments, The Clinical Neuropsychologist, 15:4, 433-439, DOI: 10.1076/ clin.15.4.433.1888 To link to this article: https://doi.org/1 0.1 076/clin.1 5.4.433.1 888 fi Published online: 09 Aug 2010. \Q Submit your article to thisjournal [3' I'll Article views: 2312 Lh View related articles C’f Ea Citing articles: 30 View citing articles C’J' Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journal|nformation?journa|Code=ntcn20 -44- The Clinical Neuropsychologist 2001, Vol. 15, No. 4, pp. 433-439 1385-4046/01/1504-433$16.00 © Swets & Zeitlinger SPECIAL PRESENTATION Policy Statement 0n the Presence 0f Third Party Observers in Neuropsychological Assessments* American Academy 0f Clinical Neuropsychology Purpose The purpose 0f this policy is t0 clarify what is the appropriate response 0f a clinical neuropsychol- ogist When a request is received for the presence 0f a third party during a medicolegal consultation and patient examination. Definitions For the purposes 0f this policy, two classes 0f third party observers are recognized, Viz., involved and uninvolved parties. Involved third parties are those Who, directly 0r indirectly, have some stake in the outcome 0f an examination 0f a particular plaintiff in civil litigation. This stake may derive from a legal, financial, family, social, 0r other relationship 0r benefit. Involved parties may or may not be known 0r familiar t0 the plaintiff patient. For example, an unfamiliar agent 0f the plaintiff’s attorney would be deemed an involved party for the purposes 0f this policy. Uninvolved third parties have n0 stake in the outcome of a plaintiff patient’s examination, directly 0r indirectly. Instead, uninvolved third parties d0 have an interest in the behavior 0f the examiner 0r in the examination process 0r in the behavior 0f the patient during the assessment as an exemplar of such relevant entities as a disease (e.g., cerebrovascular disease, closed-head injury), a condition (e.g., dementia, aphasia), 0r a phenomenon (e.g., Visual neglect, right hemi- paresis), or others (e.g., malingering, manifesta- tions 0f personality disorders). An uninvolved third party does not have an interest in the particular individual Who serves as the exemplar. The purpose of the presence of uninvolved parties generally is t0 learn about 0r practice the administration 0f neuropsychological tests, pro- cedures, interviews, and s0 forth, and t0 observe how patients respond t0 the administration 0f such tests 0r t0 receive critical feedback concerning their performance in the role of an examiner. Uninvolved parties include health-care profes- sionals and student professionals, for example, student neuropsychologists, other student psy- chologists, student psychometrists, and cognate professionals or technical personnel. Medicolegal Consultations Scope oprplication The context for this policy pertains to medicole- gal consultations in Which the consulting clinical neuropsychologist is being asked to formulate professional opinions about a patient’s condition Within their area 0f expertise in the specialty 0f clinical neuropsychology in relation t0 tort litiga- tion, 0r related insurance benefits involving third parties. This policy is not intended for application to clinical (medical) consultations in Which the clinical neuropsychologist has direct responsibi- lity for the assessment, diagnosis, 0r treatment 0f *Members of the Task Force were: Kerry Hamsher, Ph.D. (Chair), Gregory P. Lee, Ph.D., and Ida Sue Baron, Ph.D. Address correspondence to: American Academy of Clinical Neuropsychology, Department of Psychiatry (B2954, CFOB), University ofMichigan Health Systems, 1500 East Medical Center Drive, Ann Arbor, MI 48 1 09-0704, USA. Accepted for publication: August 2, 2001. .45- 434 POLICY STATEMENT the patient. Likewise, this policy is not intended for application t0 criminal forensic consultations that involve issues 0f criminal liability or culp- ability because the right t0 legal representation and a third party observer is absolute in criminal matters. Policy It is not permissible for involved third parties t0 be physically or electronically present during the course 0f an evaluation assessment 0f a plaintiff patient With the exception 0f those situations specified below. Exceptions In the case 0f toddlers and young children, when their physical separation from the parental 0r care- taker figure results in, 0r is known to result in, a behavioral reaction (e.g., disruptive behavior, dysphoric state, social Withdrawal) such as t0 invalidate the outcome 0f a neuropsychological 0r neurobehavioral assessment, it may be permis- sible t0 allow the caretaker (e.g., parent) t0 be physically present, at least initially until rapport is established, if this exception results in the cessa- tion 0r mollification of the behavioral reaction 0r otherwise allows more useful assessment data to be obtained. For example, it might be facilitative to allow a family member, who may otherwise have a distorting influence, to be present in the testing room when a child simply Will not stay in the examination room Without that family member. Likewise, s0 long as the latter principle obtains, Viz., it would allow more useful assess- ment data t0 be obtained in the professional opinion 0f the clinical neuropsychologist, this exception may be extended to certain cases involving older children and adult patients with extreme behavioral disturbances, for example, severe mental illness, delirium. When the circumstances are such that the presence 0f an involved third party may have both a potentially distorting and a potentially facilitating influence 0n the collection 0f assess- ment data, it shall be the sole responsibility of the clinical neuropsychologist employing their best clinical judgment t0 determine whether 0r not to proceed with the assessment 0f the plain- tiff patient on the particular occasion. As always, it remains incumbent upon the clini- cal neuropsychologist t0 make known any limitation regarding the reliability and validity 0f their conclusions and other professional opinions. Fundamental Issue The fundamental issue With Which this policy is concerned is the validity 0f the results obtained from a clinical neuropsychological assessment process. As a general principle, it is important that the clinical neuropsychologist not deviate from their ordinary clinical practices when called upon t0 d0 the same in the execution 0f an evaluation or in their treat- ment 0f a plaintiff patient. The greatest degree 0f validity is understood t0 be obtained when the patient is motivated t0 cooperate with the examiner by performing in an optimal fashion in compliance With instructions, and in a candid 0r unbiased fashion, and that this occurs in the context 0f a controlled environment simulating 0r comporting with psychological laboratory conditions. The presence 0f an involved third party observer potentially introduces a distortion 0f the patient’s motivation, behavioral self-selection, and rapport with the examiner(s). For example, the patient’s rapport may be more attached t0, and their behavior at least somewhat directed toward, the involved third party. This introduces threats t0 the validity 0f the neuropsychological evaluation in ways potentially unknown t0, and perhaps not perceptible by, the examiner. Because the surreptitious eavesdropping 0n a patient during an examination or treatment is ethically proscribed, the mere displacement 0f the involved third party from the examination room t0 a remote site does neither necessarily eliminate nor lessen the above described threats t0 the validity 0f the obtained psychometric 0r other evaluation data upon Which the clinical neuropsychologist will rely in formulating their professional opinions. That is, a stealthy presence Via such mechanisms as a one-way mirror, audio monitoring, Video monitoring, 0r audiovisual m0- nitoring, does not constitute a tolerable exception t0 the above-stated policy. .46- THIRD PARTY OBSERVERS IN NEUROPSYCHOLOGICAL ASSESSMENTS 435 DOCUMENTARY SUPPORT Observer Adverse Effects The presence of an involved third party observer during the neuropsychological examination may distract the examinee 0r distort patient motivation Which could adversely affect test performance. The distraction effect can come in different forms, that is, as an external distraction 0r an internal distraction, 0r some combination thereof. External distractions refer t0 stimuli that arise external to the patient and are potentially observable. These include, for example, sights and sounds. Under sights, the distracting stimuli could be simple physical movements, such as the involved third party observer turning their head in anticipation 0f a cough 0r sneeze. Also, the distracting Visual stimuli could be more complex, such as postures (‘body language’) 0r facial expressions. Although it would be a wholly unsatisfactory solution, as discussed below, removal 0f the involved third party from the examination room may greatly reduce the source of external distractions. Internal distractions, 0n the other hand, generally are not directly observable as they arise from Within the patient. These involve such stimuli as perceptions, attitudes, and social expectations 0n the part 0f the patient. For example, given that it appears that the financial rewards 0f a lawsuit may increase in some proportion t0 the severity 0f subjective complaints 0r claimed disabilities 0n the part of the patient, and knowing they are being observed by a representative 0f their own attorney, a patient may behave during the period 0f involved third party observation (by whatever means, including remotely) in such a way as they perceive would please this involved observer. Or the patient may suffer internal distraction from simply wondering how the involved third party observer is evaluating their behavior and test performance rather than being fully focused 0n the task at hand, (e.g., if an involved third party observer were t0 insist 0n access to such observation, it would be reasonable for the patient t0 assume that how they behaved during observation was particularly important to the involved third party). In regard t0 internal distractions, the use of remote observation by audio 0r Visual monitoring 0r videotaping does not greatly reduce the source 0f this type 0f distraction. Psychologists are obligated t0 create a testing environment relatively free 0f distractions. Stand- ard 15.2 of the Standards for Educational and Psychological Testing (American Educational Research Association, 1985) states, “The testing environment should be one 0f reasonable comfort and with minimal distractions” (p. 83). The Standards for Educational and Psycholo- gical Testing also direct psychologists to follow the procedures for administration specified by the publisher in the test manual: “In typical situa- tions, test administrators should follow carefully the standardized procedures for administration and scoring specified by the test publisher” (Standard 15.1, p. 83). The Wechsler Adult Intelligence Scale - III, Administration and Scor- ing Manual (Wechsler, 1997) specifically states that involved third parties should be excluded from the testing area: As a rule, n0 one other than you and the examinee should be in the room during the testing. Attorneys Who represent plaintiffs sometimes ask t0 observe but typically Withdraw this request When informed of the potential effect of the presence of a third person. (p. 29) An almost identical statement against the pre- sence 0f an involved third person is presented 0n page 3O 0f the Wechsler Memory Scale - III, Administration and Scoring Manual (Wechsler, 1997). In her authoritative work, Neuropsychological Assessment, Third Edition, (1995) Lezak notes that distractions in the testing environment adversely affect performance, and thus, jeopar- dize the validity of a neuropsychological assess- ment. She states: It is not difficult t0 get a patient t0 d0 poorly 0n a psychological examination. This is especially true of brain damaged patients, for the quality 0f their performance can be exceedingly vulnerable t0 external influ- ences or changes in their internal states. A11 an examiner need d0 is make these patients .47- 436 POLICY STATEMENT tired 0r anxious, 0r subject them t0 any one 0f a number 0f distractions most people ordinarily d0 not even notice, and their test scores will plummet. . . Eliciting the patient’s maximum output is necessary for a valid behavioral assessment. Interpretation 0f test scores and of test behavior is predicated 0n the assumption that the demonstrated behavior is a repre- sentative sample 0fthe patient’s true capacity in that area. (pp. 139-140) Binder and Johnson-Greene (1995) demonstrated the negative effect that an involved observer had 0n test performance in a single case study. McSweeny, Becker, Naugle, Snow, Binder, and Thompson (in press) have detailed many 0f the ethical implications 0f the use 0f third party observers. Some 0f the adverse effects 0f observers 0n test performance have been system- atically investigated in a body 0f literature that has come to be known as social facilitation research. McCaffrey, Fisher, Gold, and Lynch (1996) summarized the recent literature on social facilitation in their article 0n the presence 0f third party observers during neuropsy- chological evaluations. The social facilitation literature provides empirical evidence that the presence 0f a third party observer can alter cognitive and motor test performance Whether 0r not the patient has a brain injury or disease. The social facilitation effect causes examinees t0 perform better than usual 0n tests of simple 0r overlearned skills and poorer 0n tasks that are more difficult for them (McCaffrey et a1., 1996). These adverse effects have been shown t0 occur even when the observer is behind a one-way mirror. Although there are n0 studies at present that demonstrate a social facilitation effect during Video 0r audio taping, these alternatives t0 the physical presence 0f an observer in the room raise other important ethical and professional concerns (such as, problems involving test security, allow- ing testing materials to become part of the public domain, 0r potential misuse 0f assessment results by third parties for purposes unrelated to the current case). Test Administration and Interpretation Psychological and neuropsychological tests have not been standardized in the presence 0f involved third party observers, and thus, it is inappropriate t0 compare the examinee’s results to the norma- tive results from the standardization sample. Departure from a standardized testing procedures may diminish the utility 0f the normative data. Thus, any factor that compromises the standard administration of a neuropsychological test may jeopardize the validity and reliability of the test’s fingings. In a highly regarded book 0n the nature and use of psychological and neuropsychological tests, Anastasi (1988) stresses the importance 0f test standardization, “Standardization implies unifor- mity 0f procedure in administering and scoring the test. If the scores obtained by different persons are t0 be comparable, testing conditions must obviously be the same for all. Such a requirement is only a special application of the need for con- trolled conditions in all scientific observations. In a test situation, the single independent variable is often the individual being tested.” (p. X). The Standards for Educational and Psycholo- gical Testing (American Educational Research Association, 1985) stress the importance of follo- wing standardized procedures in Standard 15.1, In typical applications, test administrators should follow carefully the standardized procedures for administration and scoring specified by the test publisher. Specifica- tions regarding instructions t0 test takers, time limits, the form of item presentation 0r response, and test materials 0r equipment should be strictly observed. Exceptions should be made only 0n the basis 0f carefully considered professional judgment, primarily in clinical applications. (p. 83) In the American Psychological Association’s ethical principles 0f psychologists (American Psychological Association, 1992), ethical stan- dard 2.04(c) Use 0f Assessment in General with Special Populations states in part, “Psychologists attempt to identify situations in Which particular interpretations or assessment techniques or norms may not be applicable or may require adjustment .43- THIRD PARTY OBSERVERS IN NEUROPSYCHOLOGICAL ASSESSMENTS 437 in administration 0r interpretation because 0f factors such as. . .” Because no norms exist for testing in the presence 0f involved third parties, misinterpretation 0f test results may be common, and psychologists should be aware 0f the potential ethical difficulties involved in interpretation 0f test results under these circumstances. If an involved third party were present during a neuropsychological examination, neuropsycholo- gists should include in their report any concerns regarding limitations that this places 0n inter- pretation. This is made clear in ethical standard 2.05, Interpreting Assessment Results: When interpreting assessment results, in- cluding automated interpretations, psycho- logists take into account the various test factors and characteristics 0f the person being assessed that might affect psycholo- gists’ judgements or reduce the accuracy of their interpretations. They indicate any significant reservations they have about the accuracy or limitations of their inter- pretations. Ethical principle 2.02 (a), Competence and Appropriate Use 0f Assessments and Interven- tions, states, “Psychologists Who develop, administer, score, interpret, 0r use psychological assessment techniques, interviews, tests, 0r instruments d0 so in a manner and for purposes that are appropriate in light of the research 0n or evidence of the usefulness and proper application 0f the techniques.” Thus, psychologists should be aware that the presence 0f an involved third party may alter the validity 0f test results and either refuse t0 administer tests under these circumstances 0r alter their interpretations if an observer has been present. The presence of an involved third party may especially impact 0n determinations made about the integrity 0f brain function, change over time intervals, and effects 0f treatment in individuals prone t0 easy disrup- tion 0f function such as those With neurological conditions. Test Security Involved third party observers may undermine the neuropsychologist’s ethical responsibility t0 maintain test security. This ethical principle is most clearly presented in Ethical Standard 2.10, Maintaining Test Security (American Psycholog- ical Association, 1992): Psychologists make reasonable efforts t0 maintain the integrity and security 0f tests and other assessment techniques consistent with law, contractual obligations, and in a manner that permits compliance with the requirements 0f this code. The same principle is also delineated in the Standards for Educational and Psychological Testing (1985). Standard 15.7 states that, “Test users should protect the security of test mate- rials.” These standards would be applicable Whether the observation occurred in the testing room, behind a one-way mirror, or through audio or Video monitoring 0r recording. Test Misuse The neuropsychologist has little 0r n0 control over how an involved third party observer will use the content 0f testing in the present 0r future cases. This lack 0f control over the data gener- ated during a neuropsychological assessment may be incompatible with our ethical responsi- bilities. The American Psychological Associa- tion’s (1992), Ethical Standard, 1.16, Misuse 0f Psychologists’ Work states, “Psychologists d0 not participate in activities in which it appears likely that their skills 0r data Will be misused by others, unless corrective mechanisms are available.” Involved third party observers could take notes and record specific test questions and answers t0 be used in preparing or coaching future litigants with neuropsychological claims. Moreover, poor performances could be misinterpreted by the third party resulting in incorrect conclusions. A11 these difficulties which could arise from the presence 0f an involved observer could result in a potential conflict with Ethical Standard, 2.02 (b), Compe- tence and Appropriate Use 0f Assessments and Interventions: Psychologists refrain from misuse of assess- ment techniques, interventions, results, and interpretations and take reasonable steps t0 .49- 438 POLICY STATEMENT prevent others from misusing the informa- tion these techniques provide. This includes refraining from releasing raw test results 0r raw data t0 persons, other than t0 patients 0r clients as appropriate, Who are not qualified t0 use such information. As with the problem of test security, potential test misuse may occur regardless 0f the method 0f observation (i.e., actual presence in the same room, behind a 0ne-way mirror, 0r audio 0r Video monitoring lrecording). Responsibility in Forensic Situations Because the presence 0f an involved third party observer is most commonly requested Within a medicolegal context, several ethical principles may help t0 guide neuropsychologist’s decisions regarding this issue. Ethical standard, 7.06, Com- pliance with Law and Rules, appears t0 indicate that it is the responsibility 0f the neuropsycholo- gist t0 inform lawyers, judges, and others that the presence 0f an involved third party observer represents a potential ethical conflict. Ethical standard, 7.06, Compliance with Law and Rules, states: In performing forensic roles, psychologists are reasonably familiar With the rules gov- erning their roles. Psychologists are aware 0f the occasionally competing demands placed upon them by these principles and the requirements 0f the court system, and attempt t0 resolve these conflicts by making known their commitment t0 this Ethics Code and taking steps to resolve the conflict in a responsible manner. In a similar vein, Ethical Standard, 1.02, Relation- ship 0f Ethics and Law, explicitly explains that, “If psychologists’ ethical responsibilities conflict With law, psychologists make known their com- mitment t0 the Ethics Code and take steps t0 resolve the conflict in a responsible manner.” Confidentiality may also encompass the issue 0f involved third party observers. Ethical stan- dard, 5.02, Maintaining Confidentiality, states that “psychologists have a primary obligation and take reasonable precautions t0 respect the con- fidentiality rights of those With Whom they work 0r consult...” Neuropsychologists need t0 com- municate the potential limitations to confidenti- ality with all parties involved but especially With the patient. Ethical standard, 7.01 , Professionalism, informs the psychologist that the APA Ethics Code applies t0 the atypical professional activities that take place within the forensic context. Standard 7.01 states in part, “Psychologists Who perform forensic functions, such as assessments, inter- views, consultations, reports, 0r expert testimony, must comply With all other provisions of this Ethics Code t0 the extent that they apply t0 such work activities.” This ethical standard makes clear that all ethical issues raised by the presence 0f an involved third party are applicable Whether 0r not the neuropsychological assessment occurs in a forensic setting. Ethical standard, 7.04, Truthfidness and Can- dor, emphases the need t0 communicate the bases for conclusions as well as any threats t0 the validity 0f an examination When an involved third party has been an observer. 7.04 (a) “In forensic testimony and reports, psychologists testify truthfully, honestly, and candidly and, consistent With applicable legal procedures, describe fairly the bases for their testimony and conclusions.” 7.04 (b) “Whenever necessary t0 avoid misleading, psychologists acknowledge the limits 0f their data or conclusions.” REFERENCES American Educational Research Association, Amer- ican Psychological Association, and National Council on Measurement in Education. (1985). Standards for educational and psychological test- ing. Washington, DC: American Psychological Association. American Psychological Association. (1992). Ethical principles of psychologists and code 0f conduct. American Psychologist, 47, 1597-1611. Anastasi, A. (1988). Psychological testing, (6th ed.). New York: MacMillian. Binder, L., & Johnson-Greene, D. (1995). Observer effects 0n neuropsychological performance: A case report. The Clinical Neuropsychologist, 9, 74-78. -50- THIRD PARTY OBSERVERS IN NEUROPSYCHOLOGICAL ASSESSMENTS 439 Lezak, M.D. (1995). Neuropsychological assessment Ethical issues related t0 the presence of third-party (3rd ed.). New York: Oxford University Press. observers in clinical neuropsychological evalua- McCaffrey, R.J., Fisher, J.M., Gold, B.A., & Lynch, J.K. tions. The Clinical Neuropsychologist. (1996). Presence of third parties during neuropsy- Wechsler, D. (1997). Wechsler Memory Scale - third chological evaluations: Who is evaluating whom? edition, administration and scoring manual. San The Clinical Neuropsychologist, 10, 435-449. Antonio, TX: The Psychological Corporation, McSweeny, A.J., Becker, B.C., Naugle, R.I., Snow, Harcourt Brace & Company. W.G., Binder, L. M., & Thompson, L.L. (in press). .51- % Routledge Taylor & Francis GroupA' 'Klirl'r xrl.,iluw-'u |-|:u|-:'u;1.' Applied Neuropsychology: Adult ISSN: 2327-9095 (Print) 2327-9109 (On|ine)Journal homepage: https:/lwww.tandfonline.com/loi/hapn21 Policy Statement of the American Board of Professional Neuropsycholoy regarding Third Party Observation and the recording of psychological test administration in neuropsychological evaluations Alan Lewandowski, W._|ohn Baker, Brad Sewick,John Knippa, Bradley Axelrod & Robert]. McCaffrey To cite this article: Alan Lewandowski, W. John Baker, Brad Sewick, John Knippa, Bradley Axelrod & Robert J. McCaffrey (2016) Policy Statement of the American Board of Professional Neuropsychology regarding Third Party Observation and the recording of psychological test administration in neuropsychological evaluations, Applied Neuropsychology: Adult, 23:6, 391-398, DOI: 10.1080/23279095.2016.1 176366 To link to this article: httDS://doi.0r£/1 0.1 080/23279095.201 6.1 176366 Qg PUb'iShed 0n'in61 30 Aug 2016. GI Submit your article to thisjournal [3' . . k I'll Artlcle vnews: 1894 h View related articles [3' ® View Crossmark data C’J' ® Citing articles: 3 View citing articles C’J' CIOssMark Full Terms & Conditions of access and use can be found at https://www.tandfon|ine.com/action/journa||nformation?journaICode=hapn21 -52- APPLIED NEUROPSYCHOLOGY: ADULT 2016, VOL. 23, NO. 6, 391-398 http://dx.doi.org/1 0‘1 080/2327909S.201 6.1 176366 Roufledge Taylor & Francis Group 3503111108 GUEST EDITORIAL Policy Statement of the American Board of Professional Neuropsychology regarding Third Party Observation and the recording of psychological test administration in neuropsychological evaluations Alan Lewandowskia, W. John Bakerb, Brad Sewickc, John Knippad, Bradley Axelrode, and Robert J. McCaffrey’ aNeuropsychology Associates and Western Michigan University, School of Medicine, Kalamazoo, Ml, USA; stychological Systems, Royal Oak, Ml, USA; ‘Spectrum Rehabilitation, Southfield, Ml, USA; dCoast Psychiatric Associates, Long Beach, CA, USA; eJohn D. Dingell Department of Veterans Affairs Medical Center, Detroit, Ml, USA; fDepartment of Psychology, University at Albany, SUNY, Albany, NY, USA General Neuropsychologists are frequently presented with requests from parents, attorneys, nurse case managers, insurance representatives, school personnel, allied health professionals, family members, or other inter- ested parties who have some type 0f relationship with a patient or client examinee to directly observe or record the administration of psychological and neurop- sychological tests. Consequently, a number 0f practice concerns have been raised that include, but are not lim- ited to, the effects 0n the examinee’s performance and the neuropsychologist administering the assessment, Violations of testing guidelines, the impact 0n standardi- zation procedures, the appropriateness of applying test findings to normative samples established under stan- dardized circumstances, and test security. These requests can become even more problematic and com- plicated when the request occurs within the adversarial process associated with the legal system, such as competency hearings, custody evaluations, divorce pro- ceedings, civil litigation, and criminal investigations (Bush, Pimental, Ruff, Iverson, Barth & Broshek, 2009; Duff 8: Fisher, 2005; Howe & McCaffrey, 2010; Lynch, 2005; McCaffrey, Fisher, Gold, & Lynch, 1996; McCaffrey, Lynch, & Yantz, 2005; McSweeny et al., 1998; Sweet, Grote, & Van Gorp, 2002). Definition of Third Party Observation Third Party Observation (TPO) is defined in this practice guideline as the direct or indirect presence of an individual other than the patient or client and the psychologist 0r their technician administering a published psychological test in order t0 obtain objective data under standardized conditions for clinical, counseling, 0r forensic purposes in order t0 render clinical conclusions, opinions, interpretations, 0r recommendations based on the data collected. Direct presence means a person(s) physically present in the room other than the psychologist 0r his/her technician and the examinee. Indirect presence means Viewing through a window, two-way mirror, use of any camera, or audio or Video recording device, 0r any electronic or communication device. The act of recording includes the on-site transcription by a court recorder or reporter during an examination by either direct or indirect involvement (Barth, 2007; Constantinou, Ashendorf, & McCaffrey, 2002; Constantinou, Ashendorf, & McCaffrey, 2005; Eastvold, Belanger, 81 Vanderploeg, 2012; McCaffrey, Fisher, Gold, & Lynch, 1996). Ethical considerations The Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association (hereafter called the Ethics Code) helps guide the thinking and behavior of psychologists, and provides direction with regard t0 clinical practice standards. Relevant to TPO and the Ethics Code are both the General Principles and a number ofthe Ethical Standards. Within the Ethics Code a series of General Principles are outlined with the intent of guiding psychologists t0 practice at the highest professional level. Relevant to TPO are General Principle: A (Beneficence and Non- maleficence), B: (Fidelity and Responsibility), C (Integrity), and D (Justice). In contrast to the General Principles, the Ethics Code offers specific standards that represent obligations to which psychologists are bound, and consequently form the basis for ethical violations and consequently the basis for sanctions. Most relevant to TPO are Ethical Standards 2 (Competence) and 9 (Assessment). (American Psychological Association, 2010). CONTACT Alan Lewandowski, Ph.D., ABN 8 alan.Iewandowski@wmich.edu e 4328 West Michigan Avenue, Kalamazoo, MI 49006. © 2016 Taylor & Francis -53- 392 A.LEWANDow5KIET AL‘ Principle A: Beneficence and nonmaleficence Principle A is applicable and is described as follows: Psychologists strive to benefit those with whom they work and take care to do no harm. In their professional actions, psychologists seek t0 safeguard the welfare and rights 0f those with whom they interact professionally and other affected persons, and the welfare 0f animal subjects 0f research. When conflicts occur among psychologists’ obligations or concerns, they attempt to resolve these conflicts in a responsible fashion that avoids 0r minimizes harm. Because psychologists’ scientific and professional judg- ments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead t0 misuse 0f their influence. Psychologists strive t0 be aware of the possible effect 0f their own physical and mental health on their ability to help those with whom they work (American Psychological Association, 2010, p. 3). It is incumbent 0n neuropsychologists t0 be vigilant regarding the impact 0f their professional opinion 0n others, particularly with regard to diagnostic testing. Scientific and professional judgments and conclusions should be based on data from neuropsychological assessments gathered in a standardized manner and, therefore, without the influence of extraneous factors that might influence the collection of behavior samples. Neuropsychologists must always be mindful that their verbal and written opinions affect the medical, social, and legal lives 0f others and, therefore, must safeguard those with whom they interact professionally to do n0 harm. Principle B: Fidelity and responsibility Principle B is applicable and is described as follows. Psychologists establish relationships of trust with those with whom they work. They are aware of their professional and scientific responsibilities to society and to the specific communities in which they work. Psychologists uphold professional standards of conduct, clarify their professional roles and obligations, accept appropriate responsibility for their behavior, and seek t0 manage conflicts 0f interest that could lead t0 exploitation or harm. Psychologists consult with, refer to, or cooperate with other professionals and institutions to the extent needed to serve the best interests of those with whom they work. They are concerned about the ethical com- pliance of their colleagues’ scientific and professional conduct. Psychologists strive t0 contribute a portion of their professional time for little or n0 compensation or personal advantage (American Psychological Association, 2010, p. 3). It is the responsibility of all psychologists who elect t0 perform diagnostic testing, to do so within the estab- lished parameters of the instrument(s) they employ and therefore in a standardized manner. Whether or not a neuropsychologist is engaged in a patient-doctor relationship, acting as an independent clinician, a clin- ician for an institution, state 0r federal agency, or an independent examiner for an insurance carrier or legal counsel, a professional obligation exists to uphold stan- dards for the delivery of scientific work commensurate with the responsibilities t0 the profession, community, and society in general. Principle C: Integrity Principle C is applicable and is described as follows. Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology. In these activities psychologists do not steal, cheat, or engage in fraud, subterfuge, or intentional mis- representation of fact. Psychologists strive to keep their promises and to avoid unwise or unclear commitments. In situations in which deception may be ethically justifiable to maximize benefits and minimize harm, psychologists have a serious obligation t0 consider the need for, the possible consequences of, and their responsibility to correct any resulting mistrust or other harmful effects that arise from the use of such techniques (American Psychological Association, 2010, p. 3). The practice and promotion of clinical assessment requires that neuropsychologists present themselves and their work to others in an accurate and honest man- ner and avoid any misrepresentation of their findings. A considerable body of research supports that TPO can affect the accuracy of test findings, and to purposefully disregard its potential impact can be construed as a mis- representation of the data Principle D: Justice Principle D is applicable and is described as follows. Psychologists recognize that fairness and justice entitle all persons t0 access to and benefit from the contribu- tions of psychology and t0 equal quality in the processes, procedures, and services being conducted by psychologists. Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices (American Psychological Association, 2010, p. 3-4). In an attempt to provide fair and just treatment to all patients and clients, neuropsychologists do not modify assessment procedures or alter their work on the basis -54- of personal opinion or professional bias, nor do they neglect t0 maintain an awareness 0f their competency level and the limitations 0f their expertise. To this end, the American Psychological Association (APA), psychological state organizations, and neuropsychologi- cal specialty organizations, provide multiple continuing education opportunities for neuropsychologists to learn, maintain, and improve their professional expertise, and avoid practices that are irregular or not commensurate with accepted clinical practice. Given the body of litera- ture that exists regarding observer effects, it is incum- bent on neuropsychologists who provide evaluations to make clear to patients, clients, families, and other professionals that they do not endorse TPO and to try to avoid this type 0f intrusion in the assessment. Ethical standard 2: Competence Ethical Standard 2 is applicable to TPO and the recording 0f test administration. Section 2.04, Bases for Scientific and Professional Judgments states the following: Psychologists’ work is based upon established scientific and professional knowledge of the discipline. (American Psychological Association, 2010, p. 5; see also Standards 2.01e, Boundaries of Competence). Ethical standard 2.04 Ethical Standard 2.04 requires neuropsychologists to conduct their practice within the boundaries of scien- tific knowledge. Texts 0n psychological testing have long cited the need t0 conduct testing in a distraction- free environment (Anastasi & Urbina, 1997). For example, the Wechsler Adult Intelligence Scale-Third Revision (WAIS-III) requires that, “As a rule, no one other than you and the examinee should be in the room during the testing” (1997, p. 29). The manual further directs, “Attorneys who represent plaintiffs sometimes ask to observe, but typically withdraw this request when informed of the potential effect of the presence of a third person” (Wechsler, 1997, p. 29). The requirement to avoid interference from others is noted in the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV), which advises that no one other than the examiner and the examinee should be in the room during test administration (Wechsler, 2003, p. 23). The concept of being free from distractibility is also emphasized in the Wechsler Adult Intelligence Scale- Fourth Revision (WAIS-IV) that instructs the examiner to provide a physical environment “free from distrac- tions and interruptions” and stresses that “External dis- tractions must be minimized to focus the examinee's attention on the tasks presented and not on outside APPLIED NEUROPSYCHOLOGMDULT @ 393 sounds or sights, physical discomfort, or testing materi- als not in use” (Wechsler, 2008, p. 24). This is also emphasized in the administration manual for the Rey Complex Figure Test (Meyers, 1995, p. 6). Similarly, the scoring manual for the California Verbal Learning Test-Second Edition (CVLT-II) instructs that only the examiner and examinee be present in the room during testing (Delis et al., 2000, p. 8). By eliminating the pres- ence of third parties, the examiner eliminates potential interference and the possibility 0f their distracting from or influencing the testing process, hence variables that are inconsistent with test standardization. Most test manuals specify that the examiner is responsible for ensuring that the testing environment is quiet and free from distractions (Meyers, 1995; Williams, 1991; Urbina, 2014) and are often very specific about the testing room being limited to “A table or desk and two chairs” (Meyers, 1995). Similarly, the manual for the California Verbal Learning Test- Second Edition (CVLT-II) states “as a rule, n0 one other than you and the examinee should be in the room during testing” (Delis, Dramer, Kaplan & Ober, 2000, p. 8). As described above, these instructions serve t0 empha- size the importance of controlling distraction as an important factor in assessment. Ethical standard 9: Assessment Ethical Standard 9 is applicable to TPO and recording. In Section 9.01, Bases for Assessments, the code notes “(a) Psychologists base the opinions contained in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, on infor- mation and techniques sufficient to substantiate their findings” (American Psychological Association, 2010, p. 12; see also Standard 2.04, Bases for Scientific and Professional Judgments). Test results generated by nonstandard methods that negatively impact the validity of the findings are insuf- ficient. In forensic settings, neuropsychologists are often required to use their findings in comparison with other evaluations. The ability to compare separate data sets, when one evaluation was conducted following proper testing procedures and the other evaluation had inherent threats to validity such as a third party observer is dubious. Under 9.01: (a) the psychologist cannot provide opinions or evalua- tive statements because TPO presence yields the evalu- ation of questionable validity. (b) Except as noted in 9.01c, psychologists provide opinions of the psychologi- cal characteristics of individuals only after they have con- ducted an examination of the individuals adequate to -55- 394 A. LEWANDOWSKI ET AL‘ support their statements or conclusions. When, despite reasonable efforts, such an examination is not practical, psychologists document the efforts they made and the result of those efforts, clarify the probable impact of their limited information on the reliability and validity of their opinions, and appropriately limit the nature and extent of their conclusions 0r recommendations. (American Psychological Association, 2010, p. 12; see also Standards 2.01, Boundaries of Competence, and 9.06, Interpreting Assessment Results). (c) When psycholo- gists conduct a record review or provide consultation or supervision and an individual examination is not war- ranted or necessary for the opinion, psychologists explain this and the sources of information on which they based their conclusions and recommendations. Section 9.02: Use of assessments Section 9.02 describes the following: (a) Psychologists administer, adapt, score, interpret, or use assessment techniques, interviews, tests, or instru- ments in a manner and for purposes that are appropriate in light 0f the research 0n 0r evidence of the usefulness and proper application of the techniques. (b) Psycholo- gists use assessment instruments whose validity and reliability have been established for use with members of the population tested. When such validity or reliability has not been established, psychologists describe the strengths and limitations of test results and interpretation. (c) Psychologists use assessment methods that are appropriate t0 an individual’s language preference and competence, unless the use of an alternative language is relevant to the assessment issues (American Psychological Association, 2010, p. 12). Section 9.02 (a) suggests that tests administered by a neuropsychologist in a manner that is inconsistent with the standardization 0f the instrument and contrary to the test manual, may be in violation 0f this standard. When an exception exits, it is incumbent on the neuropsychologist to provide a rationale or need that supports altering standardization in the report. Other- wise, TPO is contrary to this standard. Section 9.06: Interpreting assessment results Section 9.06 describes the following: When interpreting assessment results, including automated interpretations, psychologists take into account the purpose of the assessment as well as the vari- ous test factors, test-taking abilities, and other characteristics of the person being assessed, such as situa- tional, personal, linguistic, and cultural differences, that might affect psychologists’ judgments 0r reduce the accuracy of their interpretations. They indicate any significant limitations of their interpretations (American Psychological Association, 2010, p. 13; see also Standards 2.01b and c, Boundaries of Competence). Many authors and organizations (Anastasi 81 Urbina, 1997; National Academy of Neuropsychology, 2000a; Oregon Psychological Association, 2012; Michigan Psychological Association, 2014) emphasize that, during test development, procedures are standardized without the presence of an observer. Subsequently the data obtained outside of those parameters lacks corresponding assurance of validity and interpretive significance. Section 9.11: Maintaining test security Section 9.11 raises the importance of maintaining test security. “Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code” (American Psychological Association, 2010, p. 13). Test security is a critical issue, as it addresses the prevention of unnecessary exposure of psychometric materials that can result in diminishing a test’s ability to accurately distinguish between normal and abnormal performance. Several professional organizations have emphasized the importance of maintaining test security. The APA, the National Academy of Neuropsychology (NAN), and several state associations (among others) emphasize test security as essential to the practice of psychology, and that it is incumbent on neuropsychologists to protect the integrity of psychological test materials (American Psychological Association, 1999; National Academy of Neuropsychology, 2003; Michigan Psychological Association, 2014). Other state and national psychological organizations as well as a number of authors have raised concerns about the potential for testing material t0 be used inappropriately by attorneys or become part of the public domain (American Academy of Clinical Neurop- sychology, 2001; American Psychological Association, 1999; Bush et al., 2009; Canadian Psychological Associ- ation, 2009; Essig, Mittenberg, Petersen, Strauman, 81 Cooper, 2001; Kaufman, 2005, 2009; McCaffrey et al., 1996; Michigan Psychological Association, 2014; Morel, 2009; National Academy of Neuropsychology, 1999; Oregon Psychological Association, 2012; Victor 81 Abeles, 2004; Wetter & Corrigan, 1995). Public accessibility allows individuals involved in litigation t0 self-educate 0r be coached as t0 how t0 perform on certain measures or how to selectively pass or fail key components 0f the neuropsychological evaluation and thus invalidate the results of the assessment. As a result, several psychological organizations have taken a formal position against the presence of TPO during assessment. -56- The National Academy of Neuropsychology (Axelrod et al., 2000) advises that TPO is inconsistent with psychological guidelines and practices, as it threatens the validity, reliability, and interpretation of test scores. The position of the academy is that TPO should be avoided whenever possible outside of necessary situa- tions involving a nonforensic setting where the observer is both neutral and noninvolved (e.g., student training or an interpreter). This view is also held by the Cana- dian Psychological Association (CPA) that advises “It is not permissible for involved third parties to be physi- cally or electronically present during the course of neu- ropsychological or similar psychological evaluations of a patient or plaintiff” (CPA, 2009). The American Academy of Clinical Neuropsychology (AACN; 2001) has taken the position that “it is not per- missible for involved third parties to be physically or electronically present during the course of an evaluation assessment 0f a plaintiff patient with the exception of those situations specified below” (p. 434). Exceptions are described that include as an example, the assessment of young children who require the presence of a family member. The executive committee of the Oregon Psychologi- cal Association (2012) adopted a clear and unequivocal policy that the observation by a third party compro- mises test validity and security and therefore advises against the presence of TPO during assessment. Simi- larly, the Michigan Psychological Association Ethics Committee has advised against TPO for the same rea- sons (Michigan Psychological Association, 2014). Research evidence In support of professional ethics, there is a significant body of research indicating that TPO cannot be assumed as inconsequential to test findings. A review of the pertinent literature overwhelmingly supports the negative consequences 0f either direct or indirect TPO 0r recording on the behavior of both the examiner and the examinee, and the validity 0f findings obtained in a neuropsychological assessment. It is self-evident that neuropsychological evaluations be conducted in a standardized fashion consistent with the publisher's directives t0 ensure valid and reliable results. Consistent with other major neuropsychological organizations, it is the position 0f the American Board 0f Professional Neuropsychology that altering test pro- cedures to accommodate observation or recording com- promises test standardization and affects the subsequent data set obtained. As there is no basis for accepting as valid an assessment under nonstandard (observed or recorded) conditions, it is questionable if findings APPLIED NEUROPSYCHOLOGMDULT @ 395 reflect a reasonable degree of certainty 0r fall Within an accepted range of probability. Test results therefore lack the normal and accepted parameters of validity and, more importantly, do not reflect the expected stan- dards of psychological care. Given current research it is not surprising that most publishers of psychological tests have cautioned against TPO in their instruction manuals and national organizations have advised against TPO (National Academy 0f Neuropsychology, 2000a; Committee on Psychological Tests and Assessment, 2007). The issue of TPO has been investigated by numerous researchers, including an early case study by Binder and Iohnson-Greene (1995). Multiple studies have estab- lished and replicated the dubious validity of data obtained during recorded or observed evaluations. A considerable amount of research now exists demon- strating the deleterious effect on data obtained during nonstandard evaluations involving executive function- ing (Horowitz 8: McCaffrey, 2008), attention and pro- cessing speed (Binder 8: Iohnson-Greene, 1995; Kehrer, Sanchez, Habif, Rosenbaum, 8: Townes, 2000), and memory/recall of information (Eastvold et al., 2012; Gavett, Lynch, 8: McCaffrey, 2005; Lynch, 2005; Yantz & McCaffrey, 2005). Eastvold et a1. (2012) meta-analysis found negative effects on multiple cogni- tive measures and that attention, learning, and memory (delayed recall) were most adversely impacted by the presence of an observer. Exceptions to TPO Third party assistant (TPA) In selected circumstances, the presence 0f an unbiased, impartial, and neutral third party observer may be necessary t0 proceed With 0r complete a neuropsycholo- gical assessment. In these cases, rather than an involved third party observing or monitoring the behavior of the test administrator or examinee, the third party holds a neutral position and acts in an indirect manner to assist or expedite the completion of the assessment. Given this significant difference of purpose, we suggest that the presence of an uninvolved and neutral observer during an evaluation is more accurately identified as a third party assistant (TPA). A TPA may be deemed appropriate in clinical exam- inations in which the examiner is acting as a clinical treater with an established patient-doctor relationship, as opposed t0 an independent psychological examin- ation for an insurance company or a forensic assess- ment in civil or criminal proceedings. A TPA may be appropriate in a testing situation in which the presence -57- 396 A.LEWANDow5KIET AL‘ 0f a parent, family member, guardian, family friend, or interpreter is necessary, and Without whose presence the examination could not proceed because 0f a mental dis- ability or clinical limitation that requires an accommo- dation. Examples might include a child With suspected or diagnosed autism, developmental disorders affecting intelligence, confirmed brain injury that precludes inde- pendent living, children who are either too young or severely anxious that they cannot be left alone, elderly adults with compromised cognition who are unwilling to participate without the presence of a trusted family member or friend, or patients who have a thought dis- order impacting reality testing, among others. Alternatively, there are cases in which a language barrier precludes valid test administration. While the preference is for the examination to be conducted in the examinee’s native language, in some these cases an interpreter may be necessary because a native speaking psychological examiner is not available 01' within a practical distance. In these situations, t0 avoid potential conflicts 0f interest, if it is at all possible the interpreter should have no relationship (i.e., such as family mem- ber, Close friend 0r social affiliation) to the person being examined. Similarly, ifan examinee is deaf0r hearing impaired, an individual versed in American Sign Language (ASL) or a member 0f the deaf community would be necessary t0 complete an examination. Absent a qualified examiner flu- ent in sign language, a certified specialist or ASL interpreter may be needed. Training presents another situation in which a TPA is considered appropriate. Not unlike medical students, psychology students and technicians learning the administration of psychology test procedures require direct observation, practice, and supervision to ensure accuracy and competence. In the aforementioned cases, the examiner is ethically required to document in the neuropsychological report the use of a TPA and any deviations of standardization or modifications in test administration. The limitations 0f normative data with subsequent impact 0n the gener- alization of findings should be clearly noted. Forensic examinations, independent medical examinations, and acting as an expert witness Neuropsychologists who choose to perform forensic assessments are ethically required to be aware of the specialty guidelines pertinent to this area 0f expertise. In order to avoid potential conflict, neuropsychologists who regularly provide forensic consultations should inform referral sources that if TPO or recording develops as an issue 0r is required by legal proceedings, they may elect to remove themselves from the assessment. When retained as an expert Witness in forensic situa- tions, neuropsychologists should resist demands for TPO if requested by opposing counsel, retaining coun- sel, or the court. The neuropsychologist should educate the court or those involved as t0 the APA Ethics Code and the existing scientific research that supports the negative effects of this type of intrusion. However, it is recognized that often in forensic situations pro- fessional ethics and the adversarial nature of the legal system may not agree. If attempts t0 educate those involved fail and counsel insists, or the court directs t0 proceed with TPO, the neuropsychologist can con- sider removing himself/herself from the assessment. In those exceptions in which a neuropsychologist is compelled by the court to evaluate with a TPO because of existing state statutes or if the neuropsychologist is placed in a situation whereby withdrawing will bring clear and substantial harm to the examinee, the manner in which test validity and clinical findings are affected and may be compromised should explicitly documen- ted. The neuropsychologist should then follow existing recommendations and guidelines for protecting test security including requesting that test material and intellectual property be provided only t0 another licensed psychologist who would be bound by the same duty t0 protect. If this is not possible, the neuropsychologist should request a protective order specifically prohibiting either party from copying test material 0r intellectual property, using them for any other purpose than the matter at hand, and directing that they be returned uncopied directly to the psychologist or destroyed in a manner verifiable by the psychologist. Conclusion Requests for TPO frequently create an ethical dilemma for neuropsychologists as any observation 0r recording of neuropsychological tests or their administration has the potential to influence and compromise the behavior of both the examinee and the administrator, threatens the validity of the data obtained under these conditions by, and consequently limits normative comparisons, clinical conclusions, opinions, interpretations, and recommendations. For these reasons, APA ethical stan- dards support the position that TPO in neuropsycholo- gical testing should be avoided. Ethical standards of practice compel neuropsycholo- gists to avoid or resist requests for conducting assess- ments complicated by TPO, except for those situations -58- as described. Neuropsychologists should therefore not engage in, endorse, abet, or conduct assessments com- plicated by TPO or recording 0f any kind other than under the order of a court after all reasonable alterna- tives have been exhausted. It would be entirely appro- priate for a neuropsychologist to decline to perform an examination under these conditions. As an exception, TPA is acceptable under infrequent clinical circumstances that necessitate the involvement of an assistant 0r in a rare forensic case that might require a neutral or uninvolved party such as a language interpreter. A neuropsychologist is obligated to clarify in the report the rationale for the use of TPA, identify what procedures and standards have been modified, and how or to what degree the findings, results, and conclusions may be impacted. This should include lim- itations in the generalization 0f the diagnostic data and the impact on assessment's findings. In summary, it is the position of the American Board 0f Professional Neuropsychology that it is incumbent 0n neuropsychologists t0 minimize variables that might influence 0r distort the accuracy and validity 0f neurop- sychological assessment. Therefore, it is the recommen- dation 0f the American Board of Professional Neuropsychology that neuropsychologists should resist requests for TPO and educate the referral sources as to the ethical and clinical implications. References American Academy of Clinical Neuropsychology. (2001). Policy statement on the presence of third party observers in neuropsychological assessments. The Clinical Neuropsy- chologist (Neuropsychology, Development and Cognition: Section D), 15, 433-439. doi:10.1076/clin.15.4.433.1888 American Psychological Association. (1999). Test security: Protecting the integrity of tests. American Psychologist, 54, 1078. doi:10.1037/0003-066X.54.12.1078 American Psychological Association. (2010). Ethical princi- ples of psychologists and code of conduct: 2002. American Psychologist, 2002, 16. doi:10.1037/8305322003-001. Retrieved from http://apa.0rg/ethics/code/index.aspx Anastasi, A., 8: Urbina, S. (1997). Psychological testing (7th ed.). Upper Saddle River, N]: Prentice Hall. Axelrod, B., Barth, 1., Faust, D., Fisher, 1., Heilbronner, R., Larrabee, G., Silver, C. (2000). Presence of third party observers during neuropsychological testing: Official state- ment of the National Academy of Neuropsychology. Archives 0f Clinical Neuropsychology, 15, 379-380. doi:10.1016/50887-6177(00)00053-6 Barth, R. I. (2007). Observation compromises the credibility of an evaluation. The Guides Newsletter, (Iuly/August) 1-9. Binder, L. M., & Iohnson-Greene, D. (1995). Observer effects on neuropsychological performance: A case report. The Clinical Neuropsychologist, 9, 74-78. doi:10.1080/ 13854049508402061 APPLIED NEUROPSYCHOLOGMDULT @ 397 Bush, S., Pimental, P., Ruff, R., Iverson, G., Barth, 1., & Broshek, D. (2009). Secretive recording of neuropsycholo- gical testing and interviewing: Official position of the National Academy of Neuropsychology. Archives 0f Clinical Neuropsychology, 24, 1-2. Canadian Psychological Association. (2009). The presence of involved third party observer in neuropsychological assessments. Retrieved from http://www/cpa.ca/aboutcpa/ policystatements/#Thirdparty Committee 0n Psychological Tests, & Assessment. (2007). State- ment on third party observers in psychological testing and assessment: A framework for decision-making. American Psychological Association. Retrieved from http://www.apa. org/science/programs/testing/third-party-observers.pdf Constantinou, M., Ashendorf, L., 81 McCaffrey, R. I. (2002). When the third party observer of a neuro- psychological evaluation is an audio-recorder. The Clinical Neuropsychologist (Neuropsychology, Development and Cognition: Section D), 16, 407-412. doi:10.1076/clin.16. 3.407.13853 Constantinou, M., Ashendorf, L., & McCaffrey, R. I. (2005). Effects of a third party observer during neuropsychological assessment: When the observer is a Video camera. Journal 0f Forensic Neuropsychology, 4, 39-48. doi:10.1300/ j151v04n02_04 Delis, D., Kramer, 1., Kaplan, E., 8: Ober, B. (2000). California Verbal Learning Test-Second Edition: Adult version. San Antonio, TX: The Psychological Corporation. Duff, K., & Fisher, I. M. (2005). Ethical dilemmas with third party observers. Journal of Forensic Neuropsychology, 4, 65-82. doi:10.1300/j151v04n02_06 Eastvold, A. D., Belanger, H. G., & Vanderploeg, R. D. (2012). Does a third party observer affect neuropsychological test performance? It depends. The Clinical Neuropsychologist, 26, 520-541. doi:10.1080/138540462012663000 Essig, S., Mittenberg, W., Petersen, R., Strauman, S., & Cooper, I. (2001). Practices in forensic neuropsychology: Perspectives of neuropsychologists and trial attorneys. Archives 0f Clinical Neuropsychology, 16, 271-291. doi:10.1016/50887-6177(99)00065-7 Gavett, B. E., Lynch, I. K., & McCaffrey, R. I. (2005). Third party observers: The effect size is greater than you might think. Journal 0f Forensic Neuropsychology, 4, 49-64. doi:10.1300/j151V04n02_05 Horowitz, 1., & McCaffrey, R. I. (2008). Effects of a third party observer and anxiety 0n tests of executive function. Archives 0f Clinical Neuropsychology, 23, 409-417. doi:10.1016/j.acn.2008.02.002 Howe, L. L. S., 81 McCaffrey, R. I. (2010). Third party obser- vation during neuropsychological evaluation: An update 0n the literature, practical advice for practitioners, and future directions. The Clinical Neuropsychologist, 24, 518-537. doi:10.1080/13854041003775347 Kaufman, P. M. (2005). Protecting the objectivity, fairness, and integrity of neuropsychological evaluations in litigation: A privilege second to none? Journal of Legal Medicine, 26, 95-131. doi:10.1080/01947640590918007 Kaufman, P. M. (2009). Protecting raw data and psychological tests from wrongful disclosure: A primer on the law and other persuasive strategies. The Clinical Neuropsychologist, 23, 1130-1159. doi:10.1080/13854040903107809 -59 - 398 A.LEWANDow5KIET AL‘ Kehrer, C. A., Sanchez, P. N., Habif, U., Rosenbaum, G. 1., & Townes, B. (2000). Effects of a significant-other observer on neuropsychological test performance. The Clinical Neuropsychologist (Neuropsychology, Development and Cognition: Section D), 14, 67-71. doi:10.1076/1385-4046 (200002)14:1;1-8;ft067 Lynch, I. K. (2005). Effects of a third party observer on neuropsychological test performance following closed head injury. [oumal of Forensic Neuropsychology, 4, 17-25. doi:10.1300/j151v04n02_02 McCaffrey, R. 1., Fisher, I. M., Gold, B. A., & Lynch, I. K. (1996). Presence of third parties during neuropsychological evaluations: Who is evaluating whom? The Clinical Neurop- sychologist, 10, 435-449. doi:10.1080/13854049608406704 McCaffrey, R. 1., Lynch, I. K., & Yantz, C. L. (2005) Third party observers: Why all the fuss? Journal 0f Forensic Neuropsychology, 4, 1-15. doi:10.1300/j151v04n02_01 McSweeny, A. 1., Becker, B. C., Naugle, R. 1., Snow, W. G., Binder, L. M., & Thompson, L. L. (1998). Ethical issues related to the presence of third party observers in clinical neuropsychological evaluations. The Clinical Psychologist, 12, 552-559. doi:10.1076/Clin.12.4.552.7245 Meyers, 1., 8: Meyers, K. (1995). Rey Complex Figure Test and Recognition Trial, Lutz, FL: Psychological Assessment Resources. Michigan Psychological Association. (2014). Ethical consid- erations regarding third party observation (TPO) and recording of psychological test administration for licensed psychologists practicing in the State of Michigan. Retrieved from http://www.michiganpsychologicalassociation.org/ Morel, K. R. (2009). Test security in medicolegal cases: Proposed guidelines for attorneys utilizing neuropsychol- ogy practice. Archives of Clinical Neuropsychology, 24, 635-646. doi:10.1093/arclin/acp062 National Academy 0f Neuropsychology. (1999). Test security. Official position statement of the National Academy 0f Neuropsychology. Archives 0f Clinical Neuropsychology, 15, 383-386. Retrieved from http://nanon1ine.org/paio/ security.shtm National Academy of Neuropsychology. (2000a). Presence of third party observers during neuropsychological testing: Official statement of the National Academy of Neuro- psychology. Archives 0f Clinical Neuropsychology, 15, 379- 380. doi:10.1016/80887-6177(00)00053-6. Retrieved from http://nanonline.org/paio/thirdparty.shtm National Academy of Neuropsychology. (2000b). Test secur- ity. Official position statement of the National Academy of Neuropsychology. Archives 0f Clinical Neuropsychology, 15, 383-386. doi:10.1016/80887-6177(00)00055-x National Academy 0f Neuropsychology. (2003). Test security: An update. Retrieved from http://nanon1ine.org/docs/ PAIC/PDFs/NANTestSecurityUpdate.pdf Oregon Psychological Association. (2012). Statement opposing the presence 0f third party observers and recording neuropsy- chological and psychological assessments performed in the state of Oregon. Retrieved from http://www.opa.0rg/associations/ 2508/files/Statement%200pposing%20the%20Presence% 200f%20Third%20Party%200bservers%202- 12.pdf Sweet, I. ]., Grote, C., 8: Van Gorp, W. (2002). Ethical issues in forensic neuropsychology. In S. S. Bush & M. L. Drexler (Eds.), Ethical issues in clinical neuro- psychology (pp. 103-133). Lisse, The Netherlands: Swets & Zeitlinger. Urbina, S. (2014). Essentials of ethical test use. Psychological Testing-Second Edition (pp. 298-299). Hoboken, NI: Wiley. Victor, T. L., & Abeles, N. (2004). Coaching clients to take psychological and neuropsychological tests: A clash of ethical obligations. Professional Psychology: Research and Practice, 35, 373-379. doi:10.1037/0735-7028.35.4.373 Wechsler, D. (1997). Wechsler Adult Intelligence Scale-Third Edition: Administration and Scoring Manual. San Antonio, TX: The Psychological Corporation. Wechsler, D. (2003). Wechsler Intelligence Scale for Children- Fourth Edition (WISC-IV): Administration and Scoring Manual. San Antonio, TX: The Psychological Corporation. Wechsler, D. (2008). Wechsler Adult Intelligence Scale-Fourth Edition: Administration and Scoring Manual. San Antonio, TX: The Psychological Corporation. Wetter, M. W., & Corrigan, S. K. (1995). Providing infor- mation to clients about psychological tests: A survey of attorneys’ and law students’ attitudes. Professional Psy- chology: Research and Practice, 26, 474-477. doi:10.1037/ 0735-7028.26.5.474 Williams, I. (1991). Memory Assessment Scale. Odessa, FL: Psychological Assessment Resources. Yantz, C. L., 8: McCaffrey, R. I. (2005). Effects of a super- visor’s observation on a memory test performance of the examinee: Third party observer effect confirmed. Journal of Forensic Neuropsychology, 4, 27-38. doi:10.1300/ j151v04n02_03 -60- -61- The Clinical Neuropsychologist 1996, Vol. 10, No, 4, pp. 435-449 1385-4046/96/1004-435$12.00 © Swets & Zeitlinger THE ETHICAL NEUROPSYCHOLOGIST Presence 0f Third Parties During Neuropsychological Evaluations: Who Is Evaluating Whom?* Robert J. McCaffreyl, Jerid M. Fisherl-Z, Barry A. Goldlvi“, and Julie K. Lynchl lUniversily at Albany. State University of New York, 2Brain Injury Consultants, Inc., 3Thuillez, Ford, Gold & Conony, LLP, and 4A1bany Medical college ABSTRACT Stale and federal laws and court decisions that address requests for the presence or absence of third party observers during forensic evaluations are reviewed, as are the legal arguments for both their inclusion and exclusion. Potential sources 0f interference created by observer‘ s presence during the neuropsychological evaluation are outlined with reference to the Ethical Principles 0f Psychologists and Code 0f Conduct 0f the American Psychological Association, the Specialty Guidelines for Forensic Psychologists: Committee 0n Ethical Guidelines for Forensic Psychologists, and the Standards for Educational and Psychological Testing. The relevant empirical literature dealing with the phenomenon 0f social facilitation is also pre- sented. Guidelines are offered for use by the neuropsychologist who receives a request for obsarvation by a third party. LEGAL JUSTIFICATION FOR THIRD PARTY OBSERVERS The development 0f ethical, legal, and clinical issues associated with the presence of third per- sons during the neuropsychological evaluations 0f litigants has evolved from humble, if not be- nign, beginnings. The early cases that have formed the basis 0f some 0f today’s court deci- sions are the product 0f tort litigation as it used t0 exist. At that time, evaluations were usually performed by orthopedic surgeons 0r neurolo- gists in automobile accident or premises liability (“fall down") cases. When plaintiff’s counsel sought 10 attend, there were few legal grounds for objection to his/her presence since the results of x-rays, tests 0f reflexes, EEGS, and computer- ized imaging were not readily subject to influ- ence by third parties. Attorneys, especially those Who feared that the examiner would elicit in- criminating information concerning how the in- jury occurred, or who felt tha‘t the exam would otherwise be conducted in a biased manner, were usually permitted to attend. Bear in mind that in this early period, most jurisdictions took a dim view of psychological injuries, rendering it difficult for such claims t0 be pursued or won. As a result, very few courts were called upon to address the issue 0f third party presence during psychological evaluations. Describing the state of the law through the mid 19405, one author stated: “(T)he position of most courts...has been that (damages for) mental anguish were recoverable only as ‘parasitic’ to a physical injury or a traditional tort” (Bounds, 1985, pp. 1002-1003). This line 0f reasoning was based upon judicial concern that emotional and psychological injuries were too metaphysi- y‘ Address correspondence to: Robert 1 McCaffrey, Department 0f Psychology, Neuropsychology Laboratory ($5135), University a1 Albany, State University 0f New York, Albany, NY 12222, U.S.A. Accepted for publication: February 20, 1996. -62- 436 ROBERT J. MCCAFFREY ET AL. cal, easily faked, speculative, and difficult to verify (Keaton, 1984). It was feared that recog- nition would lead “not only to fictitious claims, but t0 litigation in the field of trivialities and mere bad manners” (Keaton, p. 56). Obviously, the rules have changed. Litigation has become more sophisticated as malpractice, product liability, civil rights, and sexual harass- ment cases have risen to occupy increasing space 0n court calendars. These claims, in addi- tion lo those associated with automobile acci- dents and premises liability, have been associ- ated with allegations of injuries ripe for neuro- psychological evaluation. Also, proof of dam- ages has become more scientific. In this context, psychological injuries have found increased acceptance, as the Courts and the public have acknowledged the fact that they may be severely debilitating. In addition, such injuries have become more verifiable. These factors, along with the development and profes- sional acceptance 0f state 0f the art testing tech- niques and the publication of standardized diag~ nostic criteria in the Diagnostic and Statistical Manual ofMemal Disorders (1952, 1968, 1975, 1987, 1994) have played major roles in the change of judicial philosophy. Equally impor- tant has been the general realization that psycho- logical injuries deserve as much legal consider- ation as physical harm when caused by negligent or intentional acts. Today, 0f course, psycholog- ical injuries are compensable in all jurisdictions within the United States. Current Legal Status The rules 0f discovery in New York State and virtually every other American jurisdiction per- mit an adverse party t0 require the examination 0f a litigant who has placed his/her mental status or physical condition in issue. The theory, of course, is that an independent evaluation 0f those who claim an injury or disability will aid the Court in its search for truth. As a result, mental health experts, and with increasing fre- quency, clinical neuropsychologists, are called upon lo evaluate plaintiffs who claim psycho- logical and/or neuropsychological injuries. The clinical neuropsychologist is confronted with the issue 0f whether the lawyer 0r other representative of the person being examined (e.g., paralegal, nurse, neuropsychologist, 0r other person) should be present during the eval- uation. In lieu of actual observation, plaintiff’s counsel may request that the evaluation be Vid- eotaped or otherwise recorded. The Courts in almost every jurisdiction have attempted to bal- ance the conflict between the desire of a litigant to have counsel present to ensure a fair examina- tion versus the disruption that the presence of a third party may cause. A review of the current case law in New York and in almost all otherjurisdictions reveals that Courts examine requests to exclude an Observ- ing attorney on a case-by-case basis. Illinois stands as an exception because Section 5/2- 1003(d) of the Code 0f Civil Procedure (1982) guarantees the plaintiff the right to have an at- torney or other person present “at a physical 0r mental examination“ (p. 174). In many, but certainly not all, state law juris- dictions there is an underlying assumption that third party attendance should be permitted. As previously noted, this attitude has been based upon the long standing practice of attorneys who have regularly accompanied their clients to phy- sical examinations (Jakubowski v. Lcngen, 1982). Their attendance has rarely been success- fully challenged. In addition, many judges have enunciated a philosophy that “The information about the way the examination was conducted may be helpful 0n cross-examination. Moreover, the practice (0f counsel being present) reduces the possibility 0f misleading medical reports” (Wcinstein, Korn, & Miller, 1994-, pp. 31-566). Other courts have suggested the following: A physician selected by defendant to examine plaintiff is not necessarily a disinterested, ”Whenever the defendant in any litigation in this Slate has the right t0 demand a physical or mental examination of the plaintiff Io statute 0f Supreme Court Rule, relative t0 the occurrence and extent 0f injuries 0r damages for which claim is made, or in connection with the plaintiff’s capacity (o exercise any right plaintiff has, or would have but for a finding based upon such examination, the plaintiff has a right t0 have his 0r her attorney, 0r such other person as the plaintiff may wish, present at such physical 0r mental examination.” -63- THIRD PARTY OBSERVER 437 impartial medical expert, indifferent to the conflicting interests of the parties. The possi- ble adversary status of the examining doctor for the defense is under ordinary circum- stances, a compelling reason to permit plain- tiff’s counsel t0 be present t0 guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order t0 seek damaging admission (Jakubowski v. Lengen, 1982, p. 400). On the other hand, it is not unusual for a judge to warn: This is not to suggest that counsel may interfere with the conduct of the physical examination or that the examining room should be turned into a hearing room with lawyers and stenographers from both sides participating. Thelawyer’ s role...should be limited to protection 0f the legal interests 0f his client apart from actual physical exami- nation in which he has no role (Jakubowski v. Lengen, 1982, p. 401). While the rationale for permitting the presence 0f an observer, as outlined above, may bejustifi- able with respect t0 a routine medica] examina- tion, they may not be as applicable t0 neuropsy- chologica] evaluations. The presence of a third party during such an exam may effect its results. Because they rely less upon rapport with the examiner, X-rays, EEGs, and other tests that were the basis for earlier court decisions t0 per- mit third party observers are obviously less eas- ily influenced. The subtleties 0f the neuropsy- chological evaluation process may be more sus- ccptible to influence if the litigant (or the psy- chologist) is thinking about the lawyer’s pres- ence 0r if (s)he is receiving nonverbal 0r more overt feedback from counsel 0r other third party observers. Sometimes such cues may even be unintentionally and unknowingly communi- cated. State Courts Despite a general inclination t0 permit the pres- ence of an attorney or other third party, the state courts have exercised their oversight 0f discov- ery in a number of different ways. In somejuris- dictions, the rule is that an attorney may be pres- ent unless a valid reason t0 the contrary is shown (Tietjen v. Department ofLabor & Indus- tries, 1975). Other state courts have held that there is n0 right to the lawyer’s presence; how- ever, given a proper reason, discretion may be exercised t0 permit him 10 attend (Vinson v. Su- perior Court, 1987). Of the remaining jurisdic- tions, some judges view each case separately (Bartell v. McCarrick, 1986) and other Courts have issued hybrid decisions. In Mohr v. District Court (1983), for example, the Montana Supreme Court permitted the attorney t0 be present but Only during the history-taking por- tion of a neurological examination. No matter what the baseline position of the Courts may be in any particular state, the rule is usually stated that when the presence of the third party would interfere with the evaluation, that party may be excluded. As a result, it is impor» tam that when the clinical neuropsychologist anticipates a compromised examination, he or she should alert and provide strong documenta- tion of his/her concerns t0 the attorney who re- quested the evaluation. It may be incumbent upon the attorney to supply that information, usually in affidavit form, along with relevant precedent, to the judge who is in charge 0f dis- covery. References and copies 0f applicable eth- ical standards and pertinent resaarch should also be submitted. Without such information, there is little chance that the Court will exclude counsel. The importance of a thorough presentation t0 the Court cannot be overstated. Galaxia Barraza v. 55 W. 47th Street Company (1989) involved posttraumatic stress disorder allegedly arising from the rape 0f a 6-year-old. The Court upheld exclusion 0f the plaintiff’s attorney based upon two affidavits from the examining psychiatrist. 1n this case, it was found that the sensitive na- ture of the inquiry might be compromised by the presence of a third party. A review 0f the Court’s decision reveals that the supporting affi- davits were vital to this decision. It should bc noted, however, that the Court permitted audio- Laping of the exam as the method 0f protecting the litigant from any bias 0r abuse by the exam- iner. On the other hand, in Jakubowski v. Lengen (0p cit) (1982), the trial Court directed that a physical examination of the litigant be held without the attorney’s presence. The New York -64- 438 ROBERT J. MCCAFFREY ET AL. Appellate Division, however, overturned this decision because there had been no finding that the attorney’s presence would interfere with the evaluation. This may well have been due t0 the fact that no affidavits had been submitted t0 demonstrate the need for exclusion. Similarly, in Lamendola v. Slocum (1989), the Appellate Di- vision refused to permit a neurological examina- tion in the absence 0f a third party observer be- cause the Court found that the record contained no evidence to support a finding that a third party would interfere with the examination. It is interesting to note that the Court prohibited plaintiff’s efforts to videotape the evaluation, leaving that technique to be used only in “spe- cial and unusual circumstances” (p. 781). The use of videotape was authorized in Mosel v. Brookhaven Hospital (1986), a malpractice case where the plaintiff was “semicomatose.” The Court found that plaintiff’s condition pre- cluded his ability to describe what occurred dur- ing the examination. As a result, it was felt that the plaintiff’s interests could be protected only by the use of videotape. The Court also con- cluded that this procedure would not affect the evaluation, noting that “... there are no allega- tions contained in any Affidavit by a physician or anyone else indicating that videotaping would be intrusive to an examining physician” (p. 75). This ruling highlights the importance 0f the sub- mission 0f an affidavit 0r other strong proof by the examiner, and is an example of the rare type of cases where videotape will be permitted. Federal Court Rule 35(21) 0f the Federal Rules 0f Civil Proce- dures (1991) States: When the mental or physical condition (including the blood group) of a party 0r of a person in the custody or under the legal con- trol of a party, is in controversy, the court in which the action is pending may order the party to submit t0 aphysical or manta] exami- nation by a suitably licensed or certified examiner 0r t0 produce for examination the person in the party’s custody of legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and t0 all parties and shall specify the time, place, manner, condi- tions, and scope of the examination and the person or persons by whom it is to be made (p.145). Under most circumstances, in contemporary fed- eral practice, the parties agree to the examina- tion without the need for a Court Order. While there is a split 0f authority, the prevail- ing interpretations 0f Rule 35(3) make it clear that in federal litigation, a party is not entitled t0 have an attorney present during the evaluation, except under unusual circumstances (Federal Procedure Lawyer’s Edition, 1994). The Courts have articulated a fear that the lawyer’ s presence might tend to transform the interactions into an adversary proceeding (McDaniel v. Toledo, Peo- ria, and Western Railroad C0., 1983) 0r com- promise examinations “Which rel(y) upon unim- peded one-on-one communication between doc- tor and patient” (Brandenberg v. Et AlAirlines, 1978, p. 546). In Tomlin v. Holecek (1993), Judge Erickson also noted that thc taping of the examination was not acceptable since the plain» tiff’s health-care providers were not subject to similar requirements. This level playing field argument could as easily apply t0 the presence of counsel. Other Courts have also pointed out potential ethical Violations? incurred by an attorney who becomes a potential witness in his client’s case (DiBari v. Armadora, 1989). The prohibition noted above is not absolute; Federal Courts have used their discretion t0 per~ mit attendance by third parties in cases where “good cause” was demonstrated. In Zabkowicz v. West Bend Co. (1984), a sexual harassment case, the plaintiff was allowed t0 have her attor- néy, a third party, or recording device present at a psychiatric examination. This Court noted plaintiff’s allegation of severe emotional dis- tress and the fear that the examination could eas- 2 Disciplinary Rule 5-102 (McKinney's Consolidated Laws ofNew York, I992) states “If, after undertaking employment in contemplated or pending litigaLion, a lawyer learns or it is obvious that the lawyer ought t0 be called as a witness on behalf 0f the client, the law- yer shall withdraw as an advocate before the tribunal, except that the lawyer may continue as an advocate and may testify in the circumstances enumerated in DR 5-101(b) (1) through (4).” -65- THIRD PARTY OBSERVER 439 ily become a deposition. Due Lo the specific cir- cumstance 0f the case, the judge felt that the defendant might unfairly receive an advantage from the unsupervised evaluation. The plaintiff in Warrick v. Brode (1969) was allowed t0 have another physician present, but only as an 0b- server. The Court specifically stated that plain- tiff’s counsel could n01 be present. It was the judge’s opinion that “(L)he examining doctor is, in effect, an officer of the court performing a non-adversary duty" (p. 428). He felt the attor- ney’s presence would taint the objective inquiry with partisanship and place him in danger 0f becoming a witness. In reviewing both state and federal cases, it is clear that the Courts usually reserve the discre- tion t0 determine who is to be present during neurop sychological 0r other evaluations. There- fore, it is incumbent upon the Clinical neuropsy- chologist to provide counsel with the informa- tion necessary for the Judge t0 fully and fairly review these issues. STANDARDIZATION IN JURY INSTRUC- TION AND DELIBERATION PROCESS In American slate and federal courts, judges Closely follow guidelines designed to en sure that all juries are given the same set 0f instructions in every case. The use 0f standardized jury in- structions (Committee on Pattern Jury Instruc- tions, 1974; Devitt, Blackmar, & O’Malley, 1990) is intended t0 assure that every litigant is treated comparably and fairly. In short, many courts utilize a uniform set 0f instructions that judges read when charging thejury. In this way, the same rules are presented to those who must weigh evidence and apply the law. The use of such standard practices in law is analogous t0 the standardized administration of neuropsycho- logical tests. During the 19503, researchers obtained per- mission to tape-record several civil jury deliber- ations for research purposes. According t0 Hans (1992), when this became public knowledge, the investigators were censured by the Attorney Genera] 0f the United States. Furthermore, the investigators were required t0 explain tham- selves before the Subcommittee on Internal Se- curity of the Senate Judiciary Committee. As a result, more than 3O jurisdictions have passed laws that forbid the recording of the delibera- tions ofjuries. It seems clear that the courts and their respective legislative bodies take a dim view of the presence of “third” parties during jury deliberations, thereby assuring that their standardization process is protected from uncon- trolled outside influences. ISSUES RAISED BY THE PRESENCE OF THIRD PARTY OBSERVERS DURING FO- RENSIC NEUROPSYCHOLOGICAL EVAL- UATIONS The Ethical Principles 0f Psychologists and Code 0f Conduct (American Psychological As- sociation, 1992) govern the behavior of all members 0fthe American Psychological Associ- ation (APA) and may be applied to psycholo- gists who are non-mcmbers 0f the APA by state psychology boards, the courts, 0r other public bodies. A review ofthe Ethical Principles of Psychol- ogists and Code of Conduct with regard t0 the issue of the presence of third party observers during neuropsychological evaluations raises several important issues for consideration. Any expert in the field of psychology, including clin- ical neuropsychology, must acknowledge as au- thoritative the following, if the expert is practic- ing at 0r above the standard 0f care: (1) Ethical Principles 0f Psychologists and Code 0f Con- duct (l 992); (2) Specialty Guidelinesfor Foren- sic Psychologists (1991) and; (3) Standards far Educational and Psychological Testing (1985). In addition, the manual for any test the expert utilizes should also be considered authoritative (e.g., WAIS-R or WISC-III). These sources de- fine the standard 0f care and provide a founda- tion for arguing that a third party observer should be excluded from the neuropsychological evaluation. Standardized Administration The overriding issue for the neuropsychological practitioner is proper (est administration and -66- 440 ROBERT J. MCCAFFREY ET AL. interpretation. At the core 0f this issue is knowl- edge of the normative sample and the standard- ized procedures for administering the test. Ac- cording to the Standards for Educational and Psychological Testing (1985), every test manual must describe the standardization sample and the methods for administering the test in a stan- dardized manner. A standard administration of a test, by definition, must adhere to the procedures outlined in the test manual. If administration of the test does not follow these procedures, then it is inappropriate t0 compare the results 0f the examinee 10 normative results from the standar- dization sample that received the standard ad- ministration. Thus, any factor that compromises the standard administration 0f a test calls into question the validity 0f the test findings based 0n the non-standard administration of the test (Kaplan & Saccuzzo, 1993). As such, the presence of a third party during a neuropsychological examination poses a seri- ous risk t0 the conduct of a valid evaluation. Although there are times when it may be clini- cally necessary t0 deviate from the standard ad~ ministration of a test (e.g., use of sign language for instructing a person with a hearing impair- ment), such modifications may invalidate the direct application 0f the standardization norms. The decision to deviate from the standard ad- ministration of a test should rest solely with the neuropsychologist who is ultimately responsible for conducting a scientifically valid and clini- cally meaningful evaluation. The testing environment should also be free from unnecessary distractions. Although this is implicit in every manual that accompanies a test instmmcnt, it is explicitly stated in some manu- als. For example, the Wechsier Intelligence Scale for Children-III (Wechsler, 1991) includes the following instructions: To minimize any potential for distractions 0r interference, conduct the test in a quiet, ade- quately lit, well-ventilaled room. As a rule, no one other than you and the child should be in the room during testing. On rare occasions, at your discretion, an accompanying adult may be permitted t0 remain in the room to facilitate testing. The accompanying adult must be silent and out 0f the child’s view dur- ing the test (p.34). The manual also notes that non-standardized administrations, such as those that occur with third panics present, render the norms invalid: “Changes in the phrasing 0r presentation 0f a test item, modifications 0f time limits, or other deviations from standard subtest directions could reduce the validity of test results” (p.33). Similar caveats are noted in the Wechsler Adult Intelligence Scale-R (Wechsler, 1981) and the Memory Assessment Scales manuals (Williams, 1991). The standardized procedures for adminis- tration and scoring specified by the test publisher should be carefully followed. Test Security and Misuse 0f Tests When conducting a neuropsychological evalua- tion in the presence of a third party, the neuro- psychologist may have limited, if any, control over how the content 0f [he evaluation will be used. A major concern for the clinical neuropsy- chologist should be to maintain the integrity 0f the neuropsychological tests. This may be im- possible, however, since the third party observer can observe the evaluation, record questions and answers, and even make notes about the physical characteristics of the actual neuropsychological assessment instruments and equipment. The in- formation gleaned by the third party observer may be misused in the future by “preparing” 0r “coaching” another litigant as to how t0 per- form 0r n01 perform 0n specific tests. Another concern for the clinical neuropsy- chologist is that the third party observer may incorrectly interpret the plaintiff’ s neuropsycho- logical performance. For example, a plaintiff may have a significantly impaired score on the Tactual Performance Test with the nondominant hand. The third party observer may interpret this as an indication 0f dysfunction in the contralat- era] cerebral hemisphere when, in fact, the poor performance is due 10 an orthopedic injury Lo that upper extremity. Neuropsychologist as Third Party Observer? Third party observers pose a threat to the valid- ity of any neuropsychological evaluation based upon the professional practice issues delineated -67- THIRD PARTY OBSERVER 441 above. The. clinical neuropsychologist asked t0 serve as a third party observer must consider this request in the context of these ethical and pro- fessional standards. Moreover, judicial rulings that permit another professional t0 be present during a medical examination may not be appli- cable to the neuropsychological evaluation (Warrick v. Erode, 1969). As noted earlier, the procedures employed during a neuropsychologi- cal evaluation may be more susceptible to influ- ence than those employed during a medical ex- amination. 1n fact, a phenomenon called social facilitation, may pose an important threat [0 the validity 0f a neuropsychological evaluation in the presence 0f a third party observer. SOCIAL FACILITATION Social facilitation has been described and stud- ied by social psychologists since the late 18003. IL is a very basic form 0f social influence that has been demonstrated in both humans and ani- mals. Social facilitation refers lo the effect(s) 0f the presence 0f a person(s) on an individual’s task performance. Specifically, individuals working in the presence 0f another person will typically exhibit a better level 0f performance 0n tasks that are easy 0r well-leamed than if they were working alone (Zajonc, 1965). If the task is difficult 0r novel, the presence of another will xypically have the opposite effect; that is, the level 0f performance will be worse than if he 0r she were working alone (for reviews see Clayton, 1978; Geen, 1989; Geen & Gange, 1977; Guerin, 1983; and Tolman, 1968). Theorists disagree as to the process that medi- ates social facilitation. This effect has been at- tributed to an increase in arousal associated with the unpredictabilily (Zajonc, 1965, 1980) 0r threat posed by other persons (Guerin & Innes, 1982), evaluation apprehension (Cottrell, 1972; Weiss & Miller, 197]), 0r the distraction from task performance that is associated with the presence 0f Other persons (Sanders & Baron, 1975). Other theorists (Carver & Scheier, 1981; Wicklund & Duval, 1971) have attributed social facilitation 10 the individual’s heightened level of self-awareness, elicited by the presence of an observer, that bacomes the source of a discrep- ant perspective between one’s desired versus actual performance. The individual’s attempt t0 reduce this discrepancy is responsible for the noted effects on task performance. The desire 10 maintain 0r develop a public image of compe- tence has also been described as a mechanism through which the presence 0f an observer influ- ences task performance (Bond, 1982). Finally, some theorists have suggested that the presence 0f others affects the way in which information is processed; it is this altered state 0f information processing that may result in so- cial facilitation (Baron, 1986; Manstead & Semin, 1980). Despite disagreement over the explanation of the factor(s) underlying social facilitation, there is consensus that people do not perform activities in the company 0f others as they would if alone. The literature 0n social facilitation provides empirical evidence t0 suggest that the presence of an 0bserver(s) alters cognitivc/motor perfor- mance. Table 1 presents a summary of this em- pirical evidence. Studies were categorized ac- cording to the general aspect 0f functioning in- volved in the performance of the specific task used in each investigation (e.g., abstraction). Table 1 shows that typical tasks used in these investigations involve motor ability, auditory comprehension, concept formation, memory, visual tracking, and mental tracking. Many neu- ropsychological instruments assess functioning in one 0r more of these areas. Cognitive maturity does not appear to be a prerequisite for social facilitation as it has been observed in groups of individuals whose cogni- tive capabilities are compromised 0r not fully developed (e.g., grade school children, Children with mental handicaps). Additionally, the mag- nitude 0f the social facilitation effect varies with the size 0f the observing audience. The greater lhe number 0f observers, the larger the impact these observers have on the examinee’s perfor- mance (Knowles, 1983; Latane, 1981; Mullen, 1983). The social facilitation literature provides a theoretical framework t0 support arguments that the presence of a third party 0bserver(s) during -68- Q u a r t e r & M a r c u s ( 1 9 7 1 ) 4 2 u n d e r g r a d u a t e s d i g i t r e c a l l T a b l e 1 ‘ R a s e a r c h D e m o n s t r a t i n g S o c i a l F a c i l i m t i o n E f f e c t s 0 n T a s k P e r f o r m a n c e ‘ A u t h o r ( s ) N T a s k 4 + “ p A b s t r a c t i o n A i e l l o & S v c c ( 1 9 9 3 ) 7 2 u n d e r g r a d u a t e s a n a g r a m s o h i n g - < . 0 5 G e c n ( 1 9 8 5 ) _ 6 0 u n d e r g r a d u a t e s a n a g r a m s o l v i n g o f h i g h l e s t a n x i e t y s u b j e c t s - < . 0 5 L a u g h l i n & J a c c a r d ( 1 9 7 5 ) 2 7 0 u n d e r g r a d u a t e s c o n c e p t a t t a i n m e n t - < . 0 5 L a u g h l i n & W o n g - M c C a r l h y ( 1 9 7 5 ) 2 5 6 u n d e r g r a d u a t e s c o n c e p t a t t a i n m e n t - < , 0 1 C o m p r e h e n s i o n B e a t t y ( 1 9 8 0 ) 4 2 u n d e r g r a d u a t e s a u d i t o r y c o m p r e h e n s i o n - < . 0 5 V i s u a l p e r c e p t i o n a n d c o n s t r u c t i o n C a r v e r & S c h e i e r ( 1 9 8 1 ) 4 0 u n d e r g r a d u a t e s s p e e d e d p r o s e c o p y i n g + < . 0 1 G u e r i n ( 1 9 8 9 ) 4 O u n d e r g r a d u a t e s s p e e d e d l e t t e r c o p y i n g + < . 0 0 6 H a a s & R o b a r t s ( 1 9 7 5 ) 4 5 u n d e r g r a d u a m s m i r r o r d r a w i n g a 6 » p o i n t s t a r f o l l o w i n g t r a i n i n g + < . 0 0 1 4 5 u n d e r g r a d u a t e s m i n o r d r a w i n g a 6 - p o i n t s t a r w i t h o u t p r i o r t r a i n i n g - < . 0 0 1 l n n e s & Y o u n g ( 1 9 7 5 ) 6 u n d e r g r a d u a t e s m i r r o r d r a w i n g a 1 2 - p o i n t s t a r - - < . 0 0 1 L a n g u a g e R i t t l e & B e r n a r d ( I 9 7 7 ) 1 8 u n d e r g r a d u a t e s w r i t t e n w o r d c o n s t r u c t i o n + < . 0 5 M e m o r y / I e a r n i n g B a r o n , M o o r e , & S a n d e r s ( 1 9 7 8 ) 5 5 u n d e r g r a d u a t e p a i r e d a s s o c i a t e s - e a s y ( i ) + < . 0 5 B e r k e y & H o p p e ( 1 9 7 2 ) 8 0 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s ~ h a r d ( i ) - < . 0 5 B o n d ( I 9 8 2 ) 7 2 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s - h a r d ( i ) - < . 0 0 5 C o t t r e l l , R i t t l c , & W a c k ( 1 9 6 7 ) 1 3 2 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s - e a s y ( i ) + < 4 0 2 5 p a i r e d a s s o c i a t e s - h a r d ( i ) - < . 0 2 5 D e f f e n b a c h e r , P l a i t , & W i l l i a m s ( 1 9 7 4 ) 3 2 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s - h a r d ( i ) - < . 0 1 p a i r e d a s s o c i a t e s - h a r d ( d ) + < , 0 0 1 G e e n ( 1 9 7 1 ) 4 8 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s » h a r d ( i ) - < . 0 5 p a i r e d a s s o c i a t e s - h a r d ( d ) + < . 0 5 G e e n ( 1 9 7 3 ) 1 6 0 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s A h a r d ( i ) - < . 0 2 5 p a i r e d a s s o c i a t e s - h a r d ( d ) + < . 0 1 G e e n ( I 9 7 9 ) 8 0 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s - h a r d ( i ) o f s u b j e c t s w / 1 0 w e x p e c t a t i o n s f o r t a s k p e r f o r m a n c e - < , 0 2 5 4 8 u n d e r g r a d u a t e s p a i r e d a s s o c i a t c s - h a r d ( i ) o f s u b j e c t s w / 1 0 w e x p e c t a t i o n s f o r t a s k p e r f o r m a n c e - < , 0 5 p a i r e d a s s o c i a t c s - h a r d ( i ) o f s u b j e c t s w / h i g h e x p e c t a t i o n s f o r t a s k p e r f o r m a n c e + < . 0 5 G e c n ( 1 9 8 3 ) 6 0 u n d e r g r a d u a t e s p a i r e d a s m c i a t e s - h a r d ( i ) - < . 0 5 p a i r e d a s s o c i a t e s - e a s y ( i ) + < . 0 5 G u e r i n ( 1 9 8 3 ) 8 0 u n d e r g r a d u a t e s p a i r e d a s s o c i a t e s - h a r d ( i ) 7 < . 0 5 H a n a w a l t & R u l t i g e r ( 1 9 4 4 ) 2 0 u n d e r g r a d u a t e s i n c i d e n t a l s t o r y r e c a l l + < . 0 1 H o u s t o n ( 1 9 7 0 ) 7 2 u n d e r g r a d u a t e s r e t r o a c t i v e i n h i b i t i o n o f p a i r e d a s s o c i a t e s - < . 0 1 S a u n a & S h o l l a n d ( 1 9 9 0 ) 1 2 0 u n d e r g r a d u a t e s w o r d l i s t r e c a l l 0 f s u b j e c t s w / l o w e x p e c t a t i o n s f o r t a s k s u c c e s s - < . 0 5 w o r d l i s t r e c a l l 0 f s u b j e c t s w / h i g h e x p e c t a t i o n s f o r s u c c e s s + < . 0 3 < Z 1 7 1 7 " I V . L H A H H H J V O O W ' f . L H H H O H -69- T a b l e 1 . R e s e a r c h D e m o n s t r a t i n g S o c i a l F a c i l i t a t i o n E f f e c t s o n T a s k P e r f o r m a n c e ( c o n t i n u e d ) . A u t h o r ( s ) N T a s k _ / + a p M o t o r B e l l & Y e e ( 1 9 8 9 ) 3 3 k a r a t e s t u d e n t s k a r a t e k i c k a c c u r a c y S U C C C S S M a g e = 2 3 9 l o w s k i l l s t u d e n t s - < . 0 5 B o w m a n & D u n n ( 1 9 8 2 ) 3 0 e d u c a b l e m e n t a l l y r e t a r d e d c h i l d r e n n u m b e r o f s i t - u p s + < . 0 0 1 K o h fi e l d & W e i t z e l ( 1 9 6 9 ) 8 5 a d u l t s t r e a d m i i l p e r f o r m a n c e + < . 0 0 1 S a s f y & O k u n ( 1 9 7 4 ) 9 6 u n d e r g r a d u a t e s b a l l r o l l i n g - < . 0 5 S t r u b e , M i l e s , & F i n c h ( 1 9 8 1 ) 6 0 a d u l t s r u n n i n g s p e e d + < . 0 0 1 W o r r i n g h a m & M e s s i c k ( 1 9 8 3 ) 3 6 a d u l t s r u n n i n g s p e e d + < . 0 1 M e n t a l / v i s u a l t r a c k i n g M i y a m o t o ( 1 9 7 9 ) 6 0 u n d e r g r a d u a t e s s t y l u s m a z e l e a r n i n g - < . 0 5 s t y l u s m a z e a c c u r a c y ~ < . 0 5 R a j c c k i , I c k e s , C o r c o r a n , & L e n e r z ( 1 9 7 7 ) 6 O u n d e r g r a d u a t e s s t y l u s m a z e s p e e d + < . 0 5 s t y l u s m a z e a c c u r a c y + < . 0 2 S h a v e r & L i e b l i n g ( 1 9 7 6 ) 3 0 u n d e r g r a d u a t e s s t y l u s m a z e a c c u r a c y - < . 0 5 S c h m i l t , G i l o v i c h , G o o r e , & 4 5 u n d e r g r a d u a t e s n a m e t y p i n g + < . 0 2 J o s e p h ( 1 9 8 6 ) n a m e / n u m b c r t y p i n g “ - - < . 0 5 V i s u o m o t o r G o r e & T a y l o r ( 1 9 7 3 ) 6 0 u n d e r g r a d u a t e s r o t a r y p u r s u i t p e r f o r m a n c e a t 4 5 r p m - - < . 0 5 G u e r i n ( 1 9 8 6 ) 3 9 u n d e r g r a d u a t e s r o t a r y p u r s u i t p e r f o r m a n c e + < . 0 1 I n n e s & G o r d o n ( 1 9 8 5 ) 6 0 u n d e r g r a d u a t e s g u i d i n g r i n g a c r o s s a c o i l i n g w i r e - < . 0 5 L o m b a r d o & C a t a l a n o ( I 9 7 5 ) 7 2 u n d e r g r a d u a t e s r o m r y p u r s u i t p e r f o r m a n c e a t 6 0 r p m - < . 0 5 L o m b a r d o & C a t a l a n o ( 1 9 7 8 ) 6 1 u n d e r g r a d u a t e s r o t a r y p u r s u i t p e r f o r m a n c e a t 6 O r p m - < . 0 0 1 M i l l e r , H u r k m a n , R o b i n s o n , & 5 0 u n d e r g r a d u a t e s r o t a r y p u r s u i t p e r f o r m a n c e a t 3 0 r p m + < . 0 5 F e i n b e r g ( 1 9 7 9 ) r o t a r y p u r s u i t p e r f o r m a n c e a t 6 0 r p m - < . 0 1 M i s c e l l a n e o u s c h o r , R o w l a n d , 8 L P o r a c ( 1 9 8 5 ) 9 6 u n d e r g r a d u a t e s v i d e o g a m e + < . 0 0 1 F o n t s ( 1 9 8 0 ) 4 8 t c n - a n d e l e v c n - y e a r o l d s r e a c t i o n t i m e + < . 0 2 5 K i m b l e & R e z a b e k ( 1 9 9 2 ) 4 6 u n d e r g r a d u a t e s v i d e o g a m e - < . 0 5 P u t z ( 1 9 7 5 ) 4 8 u n d e r g r a d u a t e s s i g n a l d e t e c t i o n + < . 0 1 R o b i n s o n - S t a v c i e y & C o o p e r ( 1 9 9 0 ) 4 0 u n d e r g r a d u a t e s c o m p u t e r g a m e p e r f o r m a n c e o f s u b j e c t s w / l o w e x p e c t a t i o n s o f - < . 0 5 N o t e . ( i ) i n d i c a t e s a n i m m e d i a t e r e c a l l t a s k w h e r e a s ( d ) i n d i c a t e s a d e l a y e d r e c a l l t a s k . a “ + ” i n d i c a t e s t h a t t a s k p e r f o r m a n c e i n t h e p r e s e n c e o f a n o b s e r v e r w a s f a c i l i t a t e d w h e n c o m p a r e d t o L h a t i n t h e a b s e n c e o f a n o b s e r v e r . “ - ” i n d i c a t e s t h a t t a s k p e r f o r m a n c e i n t h e p r e s e n c e 0 f a n o b s e r v e r w a s i n h i b i t e d w h e n c o m p a r e d t o t h a t i n t h e a b s e n c e o f t h e o b s e r v e r . ” T h e t a s k r e q u i r e d s u b j e c t s t o t y p e t h e i r n a m e A ° T h e t a s k r e q u i r e d s u b j e c t s t o t y p e t h e i r n a m e s b a c k w a r d w i t h a n u m b e r b e t w e e n e a c h l e t t e r . H H A H H S H O A L H V d G H I H L € 1 7 7 -70- 444 ROBERT J_ MCCAFFREY ET AL. a neuropsychologica] evaluation may alter the results 0f the evaluation. Therefore, it is reason- able to suspect that the performance 0f an indi- vidual with or without a brain injury on neuro- psychological tests is vulnerable l0 social facili- tation effects. Performance on tasks involving simple or well-learned skills may be atypically elevated when a third party observer is present for the neuropsychological evaluation while tasks that are difficult may be performed more poorly. Consequently, the results of the evalua- tion will provide a misleading representation of the individual’s current level of functioning. A recent case report illustrates how a third party observer may effect neuropsychological test performance. Binder and Johnson-Greene (l 995) described the effects of an observer (i,e., patient’s mother) on the test performance of her 26-year-old daughter who had medically intrac- table epileptic seizures, developmental cognitive deficits, and dependent personality traits. Using an A-B~A-B single-case design, the researchers found that the patient’s performance on the Port- land Digit Recognition Test (PDRT; Binder, 1993) was significantly worse in her mother’s presence. The PDRT is commonly used to assess malingering on neuropsychological evaluations. Overall, the patient was correct 0n 65.4% and 38.5% of the items when alone versus in the presence of her mother, respectively. Binder and Johnson-Greene suggested “... that her depen- dent personality traits interacted with the situa- tional presence of her mother t0 produce the re- sults..." (p. 77). The patient may have been mo- tivated t0 perform poorly in front of her mother to remain consistent with her usual demeanor, that of an i1] person. This case study suggests that test performance can be influenced by an observing third party and is consistent With social facilitation theory in that the presence of an observer(s) typically inhibits performance 0n novel tasks and facili- tates performance on well-leamed tasks. Since the PDRT is a novel task; the patient’s poor per- formance in the presence of her mother is con- sistent with the social facilitation literature. A potential compromise that has been sug- gested to deal with the issue of a third party ob- server is to use a one-way mirror 0r video- camera; however, the social facilitation litera- ture contains some evidence that even an unobstrusive observer can influence task perfor- mance. Table 2 presents studies that have exam- ined the effect of observation 0f testing through a one-way mirror 0r videocamera. Those studies that compared Lhc effect 0f a physically present passive observer 0n task performance, observa- tion through a one~way mirror, and the use 0f a videocamera found no significant differences among the different formats. Although we have focused 0n the vulnerabil‘ ity 0f the neuropsychological evaluation t0 so- cial facilitation effects, aspects 0f the routine medical examination (e.g., EEG, blood pressure) may be susceptible to this very basic form of social influence as well. Examination 0f the p0- tential role 0f social facilitation in medical ex- aminations awaits further investigation. RECOMMENDATIONS FOR NEURO- PSYCHOLOGICAL PRACTITIONERS Neuropsychologists should respond t0 the re- quest/demand for a third party observer(s) to be present during formal neuropsychological test- ing in a manner consistent with the professional and ethical guidelines of the profession. T0 this end, we recommend that the Clinical neuropsy- chologist initially outline for the retaining party (i.e., the party who has requested the evaluation) the professional and ethical issues, mentioned previously, that are raised by the presence of a third party observer(s). In addition, the phenom- enon of social facilitation should be explained with emphasis on the likelihood that the exam- inee’s neuropsychological deficits may appear worse than they actually are, whereas the exam- inee’s strengths may appear better than they ac- tually are. If these arguments fail to resolve this issue, then the neuropsychologist may consider refus- ing t0 conduct the evaluation. Of course, this may be the opposing counsel’s covert agenda. More important, this option could lead t0 a situ- ation in which the practice of clinical neuropsy- chology in forensic arenas is dominated, due to the selective pressures 0f a subset 0f the local -71- T a b l e 2 . S o c i a l F a c i l i t a t i o n w i t h V i d e o t a p i n g a n d O n e ~ W a y M i r r o r ‘ A u t h o r ( s ) T y p e 0 f O b s e r v a t i o n T a s k - / + a p A i e l l o & S v e c ( 1 9 9 3 ) c o m p u t e r m o n i t o r i n g 0 r a n a g r a m s s o l v i n g - < . 0 5 p h y s i c a l l y p r e s e n t o b s e r v e r s C r i d d l e ( 1 9 7 1 ) o n e - w a y m i r r o r d i f fi c u l t y p a i r e d a s s o c i a t e s l e a r n i n g - < . 0 1 G a n z e r ( 1 9 6 8 ) o n e - w a y m i r r o r 3 - s y 1 1 a b l e r e c a l l - < . 0 5 S c t a , D o n a l d s o n , & W a n g ( 1 9 8 8 ) o n e - W a y m i r r o r s e m a n t i c c l u s t e r i n g - < . 0 5 d u r i n g w o r d l i s t r e c a l l M u s i c k , B e e h r , & G i l m o r e ( 1 9 8 1 ) o n e - w a y m i r r o r o r p a i r e d a s s o c i a t e s - e a s y + < . 0 5 p h y s i c a l l y p r e s e n t o b s e r v e r G e c n ( 1 9 7 3 ) v i d e o c a m e r a 0 r p h y s i c a l l y p a i r e d a s s o c i a t e s - h a r d ( i ) - < . 0 2 5 p r e s e n t o b s e r v e r p a i r e d a s s o c i a t e s - h a r d ( d ) + < . 0 1 P u t z ( 1 9 7 5 ) v i d e o c a m e r a , v i s u a l s i g n a l d e t e c t i o n + < . 0 1 o n e - w a y m i r r o r , o r p h y s i c a l l y p r e s e n t o b s e r v e r N a t e . ( i ) i n d i c a t e s a n i m m e d i a t e r e c a l l t a s k w h e r e a s ( d ) i n d i c a t e s a d e l a y e d r e c a l l t a s k . a “ + " i n d i c a t e s t h a t t a s k p e r f o r m a n c e i n t h e p r e s e n c e 0 f a n o b s e r v e r w a s f a c i l i t a t e d w h e n c o m p a r e d t o t h a t i n t h e a b s e n c e 0 f a n o b s e r v e r . p e r f o r m a n c e i n t h c p r e s e n c e o f a n o b s e r v e r w a s i n h i b i t e d w h e n c o m p a r e d t o t h a t i n t h e a b s e n c e o f t h e o b s e r v e r . u n i n d i c a t e s t h a t t a s k H H A H E I S H O A L H V d G H I H L S W -72- 446 ROBERT J. MCCAFFREY ET AL. legal community, by neuropsychologists who are neither the most qualified nor the most ethi- cally responsible practitioners. Although the court may rule that a third party has the right t0 be present during a neuropsychologica] evalua- tion, the independent neuropsychological practi- tioner cannot be ordered t0 conduct the evalua- tion. There is also the possibility that you may be asked t0 have the neuropsychological evaluation observed via a one-way mirror or to have the evaluation videotaped. The data presented in Table 2 suggests that these alternatives t0 third party observers may not be immune t0 the ef- fects of social facilitation. Furthermore, video- taping raises a number of professional and ethi- cal issue regarding test security, abuse 0f test instruments, allowing testing material t0 become part 0f the public domain, 0r to be used by third parties for purposes unrelated to the matter at hand. H the neuropsychologist elects t0 conduct the neuropsychological evaluation in the presence 0f a third party, then all parties should understand that the report will contain a separate section that will outline your impressions and observa- tions 0f the third party. This section will also contain a discussion of unusual and not readily explainable differences between current and pre- vious test findings obtained without the confounding factor 0f a third party observer. For example, if the previous report indicates that the cxaminee’s performance on the Seashore Rhythm Test and Trail Making Test-Pan B sub- tests of the Halstead-Reitan Neuropsychological Test Battery for Adults (Reitan & Wolfson, 1993) was “normal" or “within normal limits” but these same tests resulted in Neuropsycholo- gical Deficit Scale Scores 0f 2 (mild t0 moderate impairment) and 3 (severe impairment) 0n your evaluation, then it would not be unreasonable t0 postulate that your test data were, t0 some de- gree, adversely impacted by social facilitation induced by the presence of the third party 0b- server. The inclusion of a section labeled “Third Party Observers” might be routinely included in all forensic neuropsychological reports. If n0 observers were present, this should be indicated with the caveat that the test results d0 not have 10 be interpreted with the potential impact 0f this factor in mind. This practice has the benefit 0f familiarizing the legal community and clinical neuropsychologists about third party observer issues. If initial attempts t0 exclude third party 0b- servers do not succeed, then the retaining attor- ney may want to prepare an affidavit 0n this matter for consideration by a judge. There are several factors to consider with regard 10 affida- vits. First, d0 not underestimate the potential support that neuropsychologists may be able t0 obtain from their colleagues both locally and nationwide regarding this issue (McCaffrey, Fisher, & Goid, 1994). Second, something akin to a capitated contract has been imposed upon the legal community by some insurance compa- nies: Specifically, a number of insurers may pay an attorney a fixed fee to handle a case. As such, additional time and expenditure involved in pre- paring affidavits are expensad against the fixed fee, as is the time in court arguing the issue. This may create an economic disincentive among some members 0f the legal community t0 pursue the resolution of this matter through these means, especially when such legal argu- ments must be made on a case-by-case basis. Although judges will review affidavits and articles, such as this one, when deliberating about the issue of third party observers, deci- sions are made on a case-by-case basis. In other circumstances, judges frequently look to policy statements by professional organizations. 1n our attempts 10 address this issue 0n a local level in New York State, we have requested (hat the Na- tional Academy 0f Neuropsychology and Divi- sion 40 0f the APA consider a policy statement 0n this issue. In addition, we have requested that the Testing Standards Revision Project, Science Directorate 0f the American Psychological As- sociation consider addressing this issue as they revise the Standards for Educational and Psy- chological Testing. -73- THIRD PARTY OBSERVER 447 REFERENCES Aiello, J. R., & Svec, C. M. (1993). Computer moni- toring 0f work performance: Extending the social facilitation framework to electronic presence. Journal 0f Applied Social Psychology, 23, 537- 548. American Psychological Association (1952). Diag- nostic and statistical manual of mental disorders (lst ed.). Washington, DC: Author. American Psychological Association (1968). Diag- nostic and statistical manual of mental disorders (2nd ed.). Washington, DC: Author. American Psychological Association (1975). Diag- nostic and statistical manual of mental disorders (3rd ed.). Washington, DC: Author. American Psychological Association (1987). Diag- nostic and statistical manual of mental disorders (3rd ed., rev.). Washington, DC: Author. American Psychological Association (1994). Diag» nostic and statistical manual of mental disorder (4th ed.). Washington, DC: Author. American Psychological Association (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597-1611. Baron, R. S. ( 1986). Distraction/conflict theory: Prog- ress and problems. In L. Berkowitz (Ed.), Advances in experimental social psychology (Vol. 19, pp. 1-40). New York: Academic Press. Baron, R. S., Moore, D., & Sanders, G. S. (1978). Distraction as a source of drive in social facilita- tion research. Journal 0f Personality and Social Psychology, 36, 816-824. Bartel] v. McCarrock, 498 So. 2d 1378 (Florida 1986). Beatty, M. J. (1980). Socigfl facilitation and listening comprehension. Perceptual and Motor Skills, 51, 1222. Bell, P. A., & Yec, L. A. (1989). Skill level and audi- ence effects on performance of a karate drill. Jour- nal ofSocial Psychology, 129, 191-200. Berkey, A. S., & Hoppe, R. A. (1972). The combined effect of audience anxiety on paired~associates learning. Psychonomic Science, 29, 351-353. Binder, L. (1993). Assessment 0f malingering after mild head trauma with the Portland Digit Recogni- tion Test. Journal of Clinical and Experimental Neuropsychology, 15, 170-182. Binder, L., & Johnson-Greene, D. (1995). Observer effects 0n neuropsychological performance: A case report, The Clinical Neuropsychologist, 9, 74-78. Bond, C. F. (1982). Social facilitation: A self- presentational view. Journal 0f Personality and Social Psychology, 42, 1042-1050. Bounds, G. (Ed.). (1985). American law reports (4th ed. V01. 38). New York: Lawyer’s Cooperative Publishing. Bowman, R. A., & Dunn, J. M. (1982). Effect of peer presence 0n psychomotor measures with EMR children. Exceptional Children, 48, 449-451. Brandenberg vs El Al Israel Airlines, 79 F.R.D. 525 (1983). Carver, C. 8., & Scheier, M. F. (1981). The self-atten- tion-induced feedback loop and social facilitation. Journal of Experimental Social Psychology, 17, 545-568. Clayton, D. A. (1978). Socially facilitate behavior. The Quarterly Review ofBiology, 53, 373-392. Code of Civil Procedure, Civil Practice Law 5/2- 1003(d) (Illinois 1982). Committee on Pattern Jury Instructions, Association of Supreme Court Justices. (1974). New York pat- tern jury instructions - Civil (2nd ed.). Rochester, NY: Lawyer’s Cooperative Publishing Company. Cottrell, N. B. (1972). Social facilitation. In C. G. McClintock (Ed), Experimental socialpsychology (pp. 185-236). NY: Holt. Cottrell, N. B., Rittle, R. H., & Wack, D. L. (1967). The presence of an audience and list type (competitional or noncompetitiona!) as joint deter- minants of performance in paired associates learn- ing. Journal ofPersonality, 35, 425434. Criddle, W. D. (1971). The physical presence of other individuals as a factor in social facilitation. Psychonomic Science, 22, 229-230. Deffenbacher, K. A., Flatt, G. 1., & Williams, M. A. (1974). Differential recall as a function of socially induced arousal and retention interval. Journal of Experimental Psychology, 103, 809-9] 1. Devitt, E.J., Blackmar, C.B., & O’Malley, K.F. (1990). Federal jury practice and instructions. St. Paul, MN: West Publishing. DiBari v. Armadora, 126 F.R.D. 12 EDNY (1989). Federal procedure lawyer’x edition (Vol. 10A). (1994). Rochester, NY: Lawyer’s Cooperative Pu- blishing. Federal rules of civil procedure, U.S.C.S. (Lawyer’s Cooperative, 1991). Fedor, D. B., Rowland, K. M,, & Porac, J. F. (1985). Social influence and sex effects 0n task perfor» mance and task perceptions. Journal of Vocational Behavior, 26, 66-78. Fours, G. (1980). Effect of sex of audience on speed of performance of preadolescents. Perceptual and Motor Skills, 5], 565-566. Galaxia Barraza v. 55 W. 47 Street Company, 156 A.D.2d 271 (1989). Ganzer, D. (1968). Effects of audience presence and test anxiety on Ieaming and retention in a serial learning situation. Journal of Personality and S0» cial Psychology, 8, 194-199. Geen, R. G. (1971). Social facilitation of long-term recall. Psychonomic Science, 24, 89-90. Geen, R. G. (1973). Effects 0f being observed 0n short- and long-term recall. Journal ofExperimen- zal Psychology, 100, 395-398. -74- 448 ROBERT J. McCAFFREY ET AL Geen, R. G. (1979). Effects 0f being observed on learning following success and failure experiences. Motivation and Emotion, 3, 355-371. Geen, R. G. ( 1983). Evaluation apprehension and the social facilitation/inhibition 0f learning. Motiva- tion and Emotion, 7, 203-211. Geen, R. G. (1985). Evaluation apprehension and response withholding in solution of anagrams. Per- sonality and Individual Diflerences, 6, 293-298. Geen, R. G. (1989). Alternative conceptions of social facilitation. In P. B. Paulus (Ed.), Psychology of group influence (pp. 15-51). Hillsdale, NJ: Law- rence Erlbaum. Geen, R. G., & Gauge, J. J. (1977). Drive theory of social facilitation: TWelve years of theory and research. Psychological Bulletin, 84, 1267-1288. Gore, W. V., & Taylor, D. A. (1973) The nature 0f the audience as it effects social inhibition. Repre- sentative Research in Social Psychology, 4, 18-27. Guefin, B. (1983) Social facilitation and social moni- toring: A test 0f three models. British Journal 0f Social Psychology, 22, 203-214. , Guerin, B. (1986). The effects of mere presence 0n a motor task. The Journal ofSocial Psychology, 1 Z6, 399-401. Guerin, B. (1989). Reducing evaluation effects in mere presence, The Journal ofSocial Psychology, 129, 183-190. Guerin, B., & Innes, J. M. (1982). Social facilitation and social monitoring: A new look at Zajonc’s mere presence hypothesis. British Journal 0f So- cial Psychology, 21, 7-18. Haas, 5., & Roberts, G. C. (1975). Effect of evaluative others upon learning and performance of a com- plex motor task. Journal ofMotor Behavior, 7, 81 - 90‘ Hanawah, N. G., & Ruttiger, K. F. (1944). The effect of an audience on remembering. Journal ofSocial Psychology, 19, 259-272. Hans, V.P. (1992). Jury decision making. In D.K. Kagehiro & W.S. Laufer (Eds), Handbook ofpsy- chology and law (pp. 56-76). NY: Springer-Verlag. Houston, J. P. (1970). Effects of audiences upon learning and retention. Journal 0f Experimental Psychology, 86, 449-453. Innes, J. M., & Gordon, M. I. (1985). The effects of mere presence and a mirror on performance. The Journal ofSacial nychology, 125, 479-484. Inncs, J. M., & Young, R. F. (1975). The effect 0f an audience, evaluation apprehension, and objective self~awarencss on learning. Journal ofExperimen- tal Social Psychology, I 1; 35-42. Jakubowski v, Lengen, 86 AD2d 398, 450 NYSZd 612 (Fourth Department 1982). Kaplan, R. M., & Saccuzzo, D. P. (1993). Psychologi~ cal testing: Principles, applications and issues (3rd ed.). Pacific Grove, CA: Brooks/Cole Publishing. Keeton, P.W. (Ed). (1984). Proser & Keeton 0n the law ofzorts. St. Paul, MN: West Publishing. Kimble, C. E., & Rezabck, J. S‘ (1992). Playing games before an audience: Social facilitation or choking. Social Behavior and Personality, 20, 115- 120. Kohfeld, D. L., & Weitzel, W. (1969). Some relations between personality factors and social facilitation. Journal ofExperimental Research in Personality, 3, 287-292. Knowles, E. S. (1983). Social physics and the effects of others: Tests of audience size and distance on social judgement and behavior. Journal afPerson- ality and Social Psychology, 45, 1263-1279. Lamendola v. Slocum. 148 ADZd 781, S38 N.Y.S.2d l 16 (1989). Latane, B. (1981). The psychology of social impact. American Psychologist, 36, 343-356. Laughlin, P. R., & Jaccard, J. J. (l 975). Social facili- tation and observational learning of individuals and cooperative pairs. Journal of Personality and Social Psychology, 32, 873-879. Laughlin, P. R., & Wong-McCanhy, W. J. (1975). Social inhibition as a function of observation and recording ofperformance. Journal ofExperimenzal Social Psychology, I I , 560-571. Lombardo, J. P., & Catalano, J. F. (1975). The effect of failure and the nature of the audience on perfor- mance of a complex motor task. Journal ofMotor Behavior, 7, 29-35. Lombardo, J. P., & Catalano, J. F. (I 978). Failure and its relationship to the social facilitation effect: Evi- dence for a learned drive interpretation 0f the $0« cial facilitation effect. Perceptual and Motor Skills, 46, 823-829. Manstead, A. S. R., & Semin, G. R. (1980). Social facilitation effects: Mere enhancement 0fdominant responses? British Journal of Social and Clinical Psychology, J9, 119-136. McCaffrey, R. J., Fisher, J. M., & Gold, B. A. (1994, November). Presence 0fthirdparty observers dur- ing neuropsychological evaluations: Who is evalu- ating whom? Workshop conducted at the Annual Meeting of the National Academy of Neuropsy- chology, Orlando, FL. McDaniel v. Toledo, Peoria and Western Railroad Co, 97 F.R.D. 525 (1983). McKinney’s consolidated laws 0f New York. (1992). St. Paul, Minnesota: West Publishing. Miller, F. G., Hurkman, M. E, Robinson, J. Bv, & Feinberg, R. A. (1979). Status and evaluation po- tential in the social facilitation and impairment 0f task performance. Personality and Social Psycho!» ogy Bulletin, 5, 381-385. Miyamoto, M. (1979). Social facilitation in finger maze learning. Japanese Psychological Research, 21, 94-98. Mohr v. Dism'ct Court, 202 Mont. 423, 660 P.2d 88 (1983). Mosel v. Brookhaven Hospital, 134 Misc.2d 73, 509 N.Y.S.2d 754 (1986). -75- THIRD PARTY OBSERVER 449 Mullen, B. (1983). Operationalizing the effect of the group on the individual: A self-attention perspec- tive. Journal 0f Experimental Social Psychology, 19, 295-321. Musick, S. A., Beehr, T. A., & Gilmore, D. C. (1981). Effects 0f perceptions 0f presence 0f an audience and achievement instructions 0n performance of a simple task. Psychological Reports, 49, 535-538. Putz, V. R. (1975). The effects of different modes of supervision 0n Vigilance behavior. British Journal ofPsychalogy, 66, 157-160. Quarter, J, & Marcus, A. (1971). Drive level and the audience effect: A test of Zajonc’s theory. The Journal ofSocial Psychology, 83, 99-105. Rajecki‘ D. W., Ickes, W., Corcoran, C., & Lenerz, K. (1977). Social facilitation of human performance: Mere presence effects. Journal 0f Social Psychol- ogy, 102, 297-3 10. Reitan, R., & Wolfson, S. (1993). Halszead~Reitan Neuropsychological Test Battery: Theory and Clin- ical interpretation. Tuscon, AZ: Neuropsychology Press. Rittle, R. H., & Bernard, N. (1977). Enhancement of response rate by the mere physical presence of the experimenter. Personality and Social Psychology Bulletin, 3, 127430. Robinson-Stavcley, K., & Cooper, J. (1990). Mere presence, gender, and reactions t0 computers: Stu- dying human-computcr interaction in the social context. Journal 0f Experimental Social Psychol- ogy, 26, 168-183. Sanders, G. S., & Baron, R. S. (1975). The motivating effects of distraction on task performance. Journal QfPersonaliry and Social nychology. 32, 956-963. Sanna, L. 1., & Shetland, R. L. (1990). Valence of anticipated evaluation and social facilitation. Jour- nal ofExperimental Social Psychology, 26, 82-92. Sasfy, J., & Okun, M. (1974). Form of evaluation and audience cxpertness as joint determinants of audi- ence effects. Journal 0f Experimental Social Psy- chology, 10, 461-467‘ Schmitt, B. H., Gilovich, T., Goore, N., & Joseph, L. (1 986). Mere presence and social facilitation: One more time. Journal 0f Experimental Social Psy- chology, 22, 242-248. Seta, J. J_, Donaldson, S., & Wang, M. A. (1988). The effects of evaluation on organizational proeessing. Personality and Social Psychology Bulletin, 14, 604-609. Shaver, R, & Liebling, B. A. (1976). Explorations in the drive theory of social facilitation. The Journal ofSocial Psychology, 99, 259-271. Specialty guidelines for forensic psychologists (1991). Law and Human Behavior, I5, 655-665. Standards for educational and psychological testing. (I985). Washington, DC: American Psychological Association. Strube, M. J., Miles, M. E., & Finch, W‘ H. (1981). The social facilitation of a simple task: Field tests of alternative explanations. Personality and Social Psychology Bulletin, 7, 701-707. Teitjen v. Depamnent 0f Labor & Industries, 13 Wash.App.86, 534 P.2d 151 (1975). Tolman, C. W. (1968). The role of the companion in social facilitation of animal behavior. In E. Simmel, R. Hoppe, & G. Milton (Eds.), Socialfa- cilitation and imitative behavior (pp. 33-54). Bos- ton. MA: Allyn & Bacon. Tomlin vs. Holecek, 150 F.R.D. 628 D. (Minnesota 1993). Vinson v. Superior Court, 43 CA.3d 833, 740 P.2d 404 (1987). Warrick v< Erode, 46 F.R.D. 427 D. (Delaware, 1969). Wechsler, D. (1981). Wechsler Adult Intelligence Scale-Revised manual. New York: The Psychologi- cal Corporation. Wechsler. D‘ (1991). Wechsler Intelligence Scale for Children (3rd ed.). NY: The Psychological Corpo- ranon. Weinstein, J. B., Kom, H. L., & Miller, A. R. (1994). New York civilpmctice. New York: Matthew Ben- der & Company. Weiss, R. F., & Miller, F. G. (1 971). The drive theory of social facilitation. Psychology Review, 78, 44- 57. Wicklund, R. A., & Duva], S. (1971). Opinion change and performance facilitation as a result 0f objective self-awareness‘ Journal of Experimental Social Psychology, 7, 319-342. Williams, J. M. (1991). Memory Assessment Scale. Odessa, FL: Psychological Assessment Resources. Wom'ngham, C. J., & Messick, D. M. (1983). Social facilitation of running: An unobn'usive study. The Journal 0fSocial Psychology, 121, 23-29. Zabkowicz v. West Bend Company, 585 F. Supp. 635 (ED. Wise. 1984). Zajonc, R. B. (1965). Social facilitation. Science, I49, 269-274. Zajonc, R. B. (I980). Compresence. In P. Paulus (Ed.), nychology of group influence (pp. 35-60). Hillsdale, NJ: Lawrence Erlbaum. Printed in the USA. All rights reserved Archives of Clinical Neuropsychology, Vol. 15, No. 5, pp. 383-386, 2000® Pergamon Copynght © 2000 Nat10na1 Academy 0f Neuropsychology0887-6177/00 $-see front matter PII S0887-6177(00)00055-X Test Security Official Position Statement of the National Academy of Neuropsychology Approved 10/5/99 A major practice activity of neuropsychologists is the evaluation of behavior with neu- ropsychological test procedures. Many tests, for example, those 0f memory 0r ability t0 solve novel problems, depend t0 varying degrees upon a lack 0f familiarity With the test items. Hence, there is a need to maintain test security to protect the uniqueness 0f these instruments. This is recognized in the Ethical Principles of Psychologists and Code 0f Conduct (American Psychological Association, 1992; Principle 2.1, Maintaining Test Se- curity), Which specify that these procedures are to be used only by psychologists trained in the use and interpretation 0f test instruments (APA Principles 2.01, 2.06, Unqualified Persons). In the course of the practice of psychological and neuropsychological assessment, neuropsychologists may receive requests from attorneys for copies of test protocols, and/or requests t0 audio 0r Videotape testing sessions. Copying test protocols, Video and/or audiotaping a psychological or neuropsychological evaluation for release to a non-psychologist violates the Ethical Principles 0f Psychologists and Code 0f Conduct (APA, 1992), by placing confidential test procedures in the public domain (APA Princi- ple 2.10), and by making tests available t0 persons unqualified to interpret them (APA Principles 2.02, 2.06). Recording an examination can additionally affect the validity 0f test performance (see NAN position paper 0n Third Party Observers). Such requests can also place the psychologist in potential conflict with state laws regulating the prac- tice 0f psychology. Maintaining test security is critical, because of the harm that can re- sult from public dissemination 0f novel test procedures. Audio- or Video-recording a neuropsychological examination results in a product that can be disseminated Without regard to the need t0 maintain test security. The potential disclosure of test instructions, questions, and items by replaying recorded examinations can enable individuals t0 de- termine 0r alter their responses in advance of actual examination. Thus, a likely and foreseeable consequence of uncontrolled test release is widespread circulation, leading t0 the opportunity t0 determine answers in advance, and to manipulation of test perfor- mance. This is analogous t0 the situation in which a student gains access t0 test items and the answer key for a final examination prior to taking the test. Threats to test security by release 0f test data to non-psychologists are significant. Formal research (Coleman, Rapport, Millis, Ricker, & Farchione, 1998; Wetter & Corri- The Policy and Planning committee wishes to acknowledge the important contribution of Mr. John Craver for his careful analysis and helpful comments on this project. 383 -76. 384 NAN Policy and Planning Committee gan, 1995; Youngjohn, 1995; Youngjohn, Lees-Haley, & Binder, 1999) confirms what is seemingly already evident: individuals who gain access to test content can and do manip- ulate tests and coach others to manipulate results, and they are also more likely to cir- cumvent methods for detecting test manipulation. Consequently, uncontrolled release of test procedures to non-psychologists, via stenographic, audio or visual recording poten- tially jeopardizes the validity of these procedures for future use. This is critical in a num- ber of respects. First, there is potential for great public harm (e.g., a genuinely impaired airline pilot, required to undergo examination, obtains a videotape of a neuropsycholog- ical evaluation, and produces spuriously normal scores; a genuinely non-impaired crimi- nal defendant obtains a recorded examination, and convincingly alters performance to appear motivated on tests of malingering, and impaired on measures of memory and ex- ecutive function). Second, should a test become invalidated through exposure to the public domain, redevelopment of a replacement is a costly and time consuming en- deavor (note: restandardization of the most widely-used measures of intelligence and memory, the WAIS-III and WMS-III, cost several million dollars, took over five years to complete, and required testing of over 5000 cases). This can harm copyright and intellec- tual property interests of test authors and publishers, and deprive the public of effective test instruments. Invalidation of tests through public exposure, and the prospect that ef- forts to develop replacements may fail or, even if successful, might themselves have to be replaced before too long, could serve as a major disincentive to prospective test de- velopers and publishers, and greatly inhibit new scientific and clinical advances. If a request to release test data or a recorded examination places the psychologist or neuropsychologist in possible conflict with ethical principles and directives, the profes- sional should take reasonable steps to maintain test security and thereby fulfill his or her professional obligations. Different solutions for problematic requests for the release of test material are possible. For example, the neuropsychologist may respond by offering to send the material to another qualified neuropsychologist, once assurances are ob- tained that the material will be properly protected by that professional as well. The indi- vidual making the original request for test data (e.g., the attorney) will often be satisfied by this proposed solution, although others will not and will seek to obtain the data for themselves. Other potential resolutions involve protective arrangements or protective orders from the court. (See the attached addendum for general guidelines for respond- ing to requests). In summary, the National Academy of Neuropsychology fully endorses the need to maintain test security, views the duty to do so as a basic professional and ethical obli- gation, strongly discourages the release of materials when requests do not contain ap- propriate safeguards, and, when indicated, urges the neuropsychologist to take appro- priate and reasonable steps to arrange conditions for release that ensure adequate safeguards. The NAN Policy and Planning Committee Bradley Axelrod, Ph.D. Robert Heilbronner, Ph.D. Jeffrey Barth, Ph.D., Chair Glenn Larrabee, Ph.D. David Faust, Ph.D. Neil Pliskin, Ph.D., Vice Chair Jerid Fisher, Ph.D. Cheryl Silver, Ph.D. -77- Official Statement: Test Security 385 REFERENCES American Psychological Association (1992). Ethical Principles of Psychologists and Code of Conduct. The American Psychologist , 47 , 1597-1611. Coleman, R. D., Rapport, L. J., Millis, S. R., Ricker, J. H., & Farchione, T. J. (1998). Effects of coaching on detection of malingering on the California Verbal Learning Test. Journal of Clinical and Experimental Neuropsychology , 20 (2), 201-210. Wetter, M. W., & Corrigan, S. K. (1995). Providing information clients about psychological tests: a survey of attorneys’ and law students’ attitudes. Professional Psychology: Research and Practice , 26 (5), 474-477. Youngjohn, J. R. (1995). Confirmed attorney coaching prior to neuropsychological examination. Psycholog- ical Assessment , 2 , 279-283. Youngjohn, J. R., Lees-Haley, P. R. & Binder, L. M. (1999). Comment: Warning malingerers produces more sophisticated malingering. Archives of Clinical Neuropsychology , 14 (6), 511-515. APPENDIX: HANDLING REQUESTS TO RELEASE TEST DATA, RECORDING AND/OR REPRODUCTIONS OF TEST DATA Please note that these are general guidelines that may not apply to your specific juris- diction. It is recommended that all psychologists seek advice from personal counsel to de- termine if these guidelines are appropriate for their specific jurisdiction. 1. Is the request in written form? If yes , go on to 2. If no , ask that the request be placed in written format. 2. Do you have a signed release from a competent patient? If yes , go on to 3. If no , obtain a signed release from the patient or, if the patient is not competent, from his or her legal guardian. (If competency is uncertain, e.g., the patient has deteriorated or competency has not been determined, an alternate course of ac- tion will be necessitated, e.g., contact the person who made the request and indi- cate you are not certain if the patient meets requirements to sign a release.) 3. Is the material to be released to a professional qualified to interpret the test data? If yes , go to 4. If no , go to 5. 4. Has the request included an assurance that test security will be maintained? If yes , release the material. If no , especially in certain circumstances (e.g., the psychologist is not known to you, litigation is ongoing), it may be prudent to ask for written assurance that test security will be maintained. The statement might indicate something like the fol- lowing, “I agree to protect the test materials in accordance with the principles set forth in the APA Ethical Principles.” 5. Is the request in the form of a subpoena ( not a court order)? If yes , respond in a timely fashion by indicating that complying with the request to release test data under these circumstances places the psychologist in conflict with professional practice guides and ethical principles and places him/her at risk for serious professional sanctions due to the need to maintain test security. Sec- tions of the “APA Ethical Principles” and/or of the NAN Test Security Position Statement can be provided. The need to protect test security can be explained, and proposed solutions can be presented such as release to a qualified profes- sional who agrees to maintain test security. If this is not satisfactory, alternative arrangements can be proposed; for example, all parties given access to test data -78- 386 NAN Policy and Planning Committee can assent to enter into a written agreement that contains the elements for pro- tection of test materials. Alternatively, the suggestion can be made that a court order be issued containing these elements, at which time the data will be released. If no , go on to 6. 6. Is the request in the form of a court order (i.e., signed by a judge)? If yes , go to 7. If no , the request should fall under one of the previously listed categories (e.g., an informal request, a subpoena), and the reader should consult that section. 7. Does the court order contain adequate provisions for maintaining test security? If yes , release the material If no , go to 8. 8. Does the court order require release to an unqualified individual? If yes , go to 9. If no , go to 10. 9. Court orders are expected to be obeyed in a timely fashion and failure to do so can place the professional in direct conflict with the law and at risk for serious penalties (e.g., award of attorney fees, contempt orders). If the court order does not appear to maintain adequate test security because it instructs release to a non-psychologist, possible options include: a. Respond to the court by immediately releasing the data, but at the same time request that appropriate safeguards be put in place to maintain test security. For example, the need to maintain test security might be, briefly described, the NAN Statement and/or sections of the APA Ethical Principles might be pro- vided, and the following arrangements requested: “I would ask that the test materials not be circulated beyond those directly in- volved in the case, that no unauthorized copies or reproductions be made, that the presentation of the test materials in the courtroom be minimized to the ex- tent possible, that exhibits and courtroom records containing test materials be protected or sealed, and that all test materials be destroyed or returned upon the completion of the case”. b. Seek personal counsel immediately from an attorney licensed within your ju- risdiction, and, if counsel deems it appropriate, inform the court that the re- quest to release test data creates a potential problem. A solution to the prob- lem can be proposed as in 9.a. above. 10. Court orders are expected to be obeyed in a timely fashion and failure to do so can place the professional in direct conflict with the law and at risk for serious penalties (e.g., award of attorney fees, contempt orders). If the court order com- mands release to a qualified professional and contains adequate provisions for maintaining test security, release the material. If adequate provisions are not con- tained the same type of suggestions described under 9.a. or 9.b. can be presented. It is not recommended that you disobey a court order without seeking advice of personal counsel licensed within your jurisdiction. -79- Test Security: An Update Ofiicial Statement offhe National Academy ofNeuropsychology Approved by the NANBoard ofDirectors I 0/13/2003 Introduction The National Academy 0f Neuropsychology’s first official position statement 0n Test Security was approved 0n October 5, 1999 and published in the Archives of Clinical Neuropsychology in 2000 (Volume 15, Number 5, pp. 383-386). Although this position statement has apparently served its intended purposes, questions have arisen regarding the potential impact of the 2002 revision of the APA Ethics Code (APA Ethical Principles of Psychologists and Code 0f Conduct, 2002) on the original position statement, Which was based upon the 1992 APA Ethical Principles of Psychologists and Code 0f Conduct. The 2002 revised APA Ethics Code seems to necessitate n0 basic changes in the principles and procedures contained in the original Test Security paper, and requires only some alterations and clarification in wording. Specifically, the 2002 revised APA Ethics Code distinguishes between testm and test materials. According t0 Code 9.04: Test data “refers to raw and scaled scores, client/patient responses to test questions 0r stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior during the examination. Those portions 0f test materials that include client/patient responses are included in the definition of test data.” According t0 Code 9.1 1: Test materials “refers t0 manuals, instruments, protocols, and test questions or stimuli and does not include test data” (as defined above). Psychologists are instructed t0 release testm pursuant t0 a client/patient release unless harm, misuse, 0r misrepresentation of the materials may result, while being mindful of laws regulating release of confidential materials. Absent client/patient release, test data are t0 be provided only as required by law 0r court order. In contrast, psychologists are instructed to make reasonable efforts t0 maintain the integrity and security 0f test materials and other assessment techniques consistent With such factors as law and contractual obligations. The distinction between test data and test materials increases conceptual clarity, and thus this language has been incorporated into the updated Test Security position statement that follows. Beyond this change, we do not believe that the 2002 revision of the APA Ethics Code calls for additional changes in the guidelines contained in the original Test Security -80. NAN Test Security Update PageZ paper. That is, if a request is made for test materials, the guidelines in the original position paper remain fully applicable. Further, despite the intended distinction between test materials and test data and the differing obligations attached t0 each, a request for test data still appears to necessitate the safeguards described in the original position statement in most circumstances in which neuropsychologists practice. The release pursuant to client/patient consent alone is still likely t0 conflict not only with the NAN original Test Security position statement, but also With one 0r both 0f 2002 revised APA Ethics Codes 9.04 and 9.11. This is because release of test responses Without the associated test materials often has the potential to mislead (and is also often impractical given the manner in Which test responses are often embedded in test materials). Further, in many cases, test data and test materials overlap, given the current state of many neuropsychological test forms, and thus to release the test data is t0 release the test materials. In other cases, test materials might easily be inferred from test data, and although release of the data might not technically Violate the 2002 revised APA Ethics Code 9.1 1, it may well Violate the intent of the guideline. Thus, even if requirements are met under 9.04, such test release may well still conflict With the procedures or principles articulated in 9.1 1. Thus, requests not only for release of test materials (manuals, protocols, and test questions, etc.), but also for certain test data (test scores 0r responses Where test questions are embedded or can be easily inferred) will typically fall under the guides and cautions contained in the original and restated Test Security position papers. True raw test scores or calculated test scores that do not reveal test questions, do not require such test security protection. It is unfortunate that the new 2002 revised APA Ethics Code, While clearly attempting, and for the most part achieving, clarity in endorsing the release 0f raw and scaled test scores, test answers, and patient responses, does not address the very practical problem 0f releasing data which imply or reveal test questions. This is not a trivial concern when state licensure board ethics committees may be forced t0 investigate charges that relate t0 such ambiguities. Until such clarifications are offered by APA, we suggest a conservative approach that protects these imbedded and inferred questions, and treating them as one would test materials as proffered by the NAN Revised Test Security Paper below. Further revisions 0f the NAN Test Security guidelines Will follow any clarifications by APA 0f the Ethics Code. Revised Test Security Paper A major practice activity 0f neuropsychologists is the evaluation 0f behavior With neuropsychological test procedures. Many tests, for example, those of memory 0r ability to solve novel problems, depend to varying degrees 0n a lack of familiarity with the test items. Hence, there is a need to maintain test security t0 protect the uniqueness of these instruments. This is recognized in the 1992 and 2002 Ethical Principles 0f Psychologists and Code of Conduct (APA, 1992; Code 2.1, and APA, 2002; Code 9.1 1, Maintaining Test Security), Which specify that these procedures are t0 be used only by psychologists trained in the use and interpretation of test instruments (APA, 1992; Codes 2.01, 2.06; Unqualified Persons; and APA, 2002; Code 9.04; Release 0f Test Data). -81. NAN Test Security Update Page3 In the course of the practice 0f psychological and neuropsychological assessment, neuropsychologists may receive requests from attorneys for copies 0f test protocols, and/or requests t0 audio 0r Videotape testing sessions. Copying test protocols, Video and/or audio taping a psychological 0r neuropsychological evaluation for release t0 a non-psychologist potentially violates the Ethical Principles of Psychologists and Code 0f Conduct (APA, 1992; APA, 2002), by placing confidential test procedures in the public domain 2.10), and by making tests available t0 persons unqualified t0 interpret them (APA, 1992; Codes 2.02, 2.06 and 2.10; APA, 2002; Codes 9.04 and 9.1 1). Recording an examination can additionally affect the validity 0f test performance (see NAN position paper 0n Third Party Observers). Such requests can also place the psychologist in potential conflict With state laws regulating the practice of psychology. Maintaining test security is critical, because 0f the harm that can result from public dissemination 0f novel test procedures. Audio- 0r Video recording a neuropsychological examination results in a product that can be disseminated Without regard t0 the need t0 maintain test security. The potential disclosure 0f test instructions, questions, and items by replaying recorded examinations can enable individuals t0 determine 0r alter their responses in advance of actual examination. Thus, a likely and foreseeable consequence 0f uncontrolled test release is widespread circulation, leading t0 the opportunity t0 determine answers in advance, and to manipulate test performances. This is analogous t0 the situation in Which a student gains access t0 test items and the answer key for a final examination prior t0 taking the test. Threats t0 test security by release 0f test data t0 non-psychologists are significant. Research confirms what is seemingly already evident: individuals who gain access t0 test content can and d0 manipulate tests and coach others t0 manipulate results, and they are also more likely t0 circumvent methods for detecting test manipulation (Coleman, Rapport, Millis, Ricker and Farchione, 1998; Wetter and Corrigan, 1995; Youngjohn, 1995; Youngjohn, Lees-Haley & Binder, 1999). Consequently, uncontrolled release 0f test procedures t0 non-psychologists, Via stenographic, audio 0r Visual recording potentially jeopardizes the validity of these procedures for future use. This is critical in a number 0f respects. First, there is potential for great public harm (For example, a genuinely impaired airline pilot, required t0 undergo examination, obtains a Videotape 0f a neuropsychological evaluation, and produces spuriously normal scores; a genuinely non-impaired criminal defendant obtains a recorded examination, and convincingly alters performance t0 appear motivated 0n tests 0f malingering, and impaired 0n measures of memory and executive function). Second, should a test become invalidated through exposure t0 the public domain, redevelopment 0f a replacement is a costly and time consuming endeavor (note: restandardization of the many measures of intelligence and memory, the WAIS-III and WMS-III, cost several million dollars, took over five years to complete, and required testing 0f over 5000 individuals). This can harm copyright and intellectual property interests 0f test authors and publishers, and deprive the public of effective test instruments. Invalidation of tests through public exposure, and the prospect that efforts to develop replacements may fail or, even if successful, might themselves have t0 be replaced before too long, could serve as a major disincentive t0 prospective test developers and publishers, and greatly inhibit scientific and clinical advances. -82. NAN Test Security Update Page4 If a request t0 release test data 0r a recorded examination places the psychologist 0r neuropsychologist in possible conflict With ethical principles and directives, the professional should take reasonable steps to maintain test security and thereby fulfill his or her professional obligations. Different solutions for problematic requests for the release of test material are possible. For example, the neuropsychologist may respond by offering t0 send the material t0 another qualified neuropsychologist, once assurances are obtained that the material will be properly protected by that professional as well. The individual making the original request for test data (e.g., the attorney) Will often be satisfied by this proposed solution, although others will not. Other potential resolutions involve protective arrangements or protective orders from the court. (See the attached addendum for general guidelines for responding to requests). In summary, the National Academy of Neuropsychology fully endorses the need t0 maintain test security, Views the duty t0 d0 so as a basic professional and ethical obligation, strongly discourages the release of materials When requests d0 not contain appropriate safeguards, and, When indicated, urges the neuropsychologist t0 take appropriate and reasonable steps t0 arrange conditions for release that ensure adequate safeguards. NAN Policy and Planning Committee Jeffrey Barth, Ph.D., Chair Neil Pliskin, Ph.D., Vice-Chair Sharon Arffa, PhD Bradley Axelrod, Ph.D. Lynn Blackburn, PhD David Faust, Ph.D. Jerid Fisher, Ph.D. J. Preston Harley, PhD Robert Heilbronner, PhD. Glenn Larrabee, Ph.D. Antonio Puente, PhD William Perry, Ph.D. Joseph Ricker, PhD Cheryl Silver, Ph.D. -83. -84- Affidavit Regarding Opposition to the Presence of Third Party Observers and Recording ofNeuropsychological and Psychological Assessments Performed in the State of Illinois This statement has been endorsed by Clinical Neuropsychologists who are board certified by the American Board of Clinical Neuropsychology and who are currently residing and practicing in the State of Illinois. Created by Jerry J. Sweet, Ph.D., ABPP and Leslie Guidotti Breting, PhD. in June 2012. Clinical neuropsychologists are often asked to evaluate an individual who is involved in some form of civil or administrative proceeding (e.g., related to personal injury litigation, medical malpractice litigation, application for disability benefits, worker’s compensation claim) in which an attorney formally requests that a third party (i.e., lawyer, lawyer’s representative, andlor recording device) be present to observe the entire evaluation. It is very problematic to be asked to allow either third party observation or recording of a neuropsychological evaluation. This issue has been discussed in great detail within the field of neuropsychology. Basically, the opposition within the field can be categorized as involving two issues: validity of test results and test security. Upon request, this affidavit can be accompanied by a number of relevant supponing materials that have been published on this topic, including pages from current test manuals by test publishers that specifically discourage the practice of third party observations related to lawsuits. An official statement from the American Academy of Clinical Neuropsychology on the subject of opposition to third party observers and recording has been published and can be provided. A separate professional organization, the National Academy of Neuropsychology has also developed an official position against these practices and can be provided. Relevant citations on the topic of third party observation and recording, as well as test security have been placed at the conclusion of this affidavit. With regard to validity of test results, a neuropsychological evaluation is not the same as a medical examination. Our procedures (unlike the physician’s straightfowvard evaluation of basic reflexes and balance, for example) require an environment free 0f distractions within which the examiner and examinee can develop a comfortable working relationship that lasts over a period of hours and is intended to optimize the validity of information gathered in the clinical interview and via formal testing procedures. The presence of a third party observer or recording equipment interrupts the normal focus of the examiner and the examinee on the assessment procedures, and in so doing makes the differential diagnosis more complex, increasing the likelihood that certainty of some specific conclusions would be reduced. There is a considerable scientific literature 0n the deleterious effects 0f the presence 0f observation 0r recording 0n an individual’s task performance, despite best efforts to remain unobtrusive. This effect is known as “social facilitation” (i.e., the effect or effects of the presence of a person on an individual’s task performance). The second issue is that of test security, which relates to the rights of the publishers of test materials to not have their work rendered useless by the potential public release of questions and answers to psychological and neuropsychological tests. For this same reason, publishers of -85- testing materials require proof of being a licensed psychologist before tests can be purchased. Test security issues pertain to attorneys or their representatives observing or recording the evaluation process, and to release of the raw data once the evaluation is complete. The appropriate manner in which to share or allow discovery of all aspects of neuropsychological evaluations is to release all of the information gathered during the course 0f the evaluation directly to the plaintiff’s or claimant’s expert. There is no intent on the part of clinical neuropsychologists to withhold information gained during the evaluation by not allowing third party observation and recording. In fact, all the examinee’s responses salient to the bases of our opinions will be written down and scored according to standardized procedures. A detailed formal report will describe the entire evaluation process and all results. The attomey’s own expert neuropsychologist can review all these materials at a later date and the attorney can ask detailed questions about all parts of our evaluation as part of the discovery process. Observing or recording of our evaluation is simply not necessary to ensure adequate discovery of facts from our evaluation. Moreover, as noted earlier, the presence of a third party observer or recording can invalidate portions of the results; the presence of a video or audio recording device violates the copyrights of the test publishers. The issue of test security is not restricted to the immediate case at hand. Again referring to two separate relevant surveys of attorneys (Wetter & Corrigan, 1995; Essig et al., 2001), it is known that attorneys spend substantial time preparing clients for neuropsychological examinations, including sharing information pertaining to test content, methods of detecting malingering, and common symptoms of brain injury. Apparently, attorneys feel obligated t0 use whatever information they have in their possession, which would have the effect of invalidating or undermining future evaluations as well (Victor & Abeles, 2004). The guidance 0n ethics from the American Psychological Association and related organizations in the form of Standards for Educational and Psychological Testing and the American Psychological Association’s Ethical Principles 0f Psychologists and Code of Conduct are clear in requiring limited access to questions and answers of copyrighted and normed tests that would undermine future use (e.g., Duff& Fisher, 2005; Kaufman, 2005, 2009; Sweet, Grote, & van Gorp, 2002). To summarize, our standard practice is not to have any person or recording equipment present for the examination, other than the examinee and the examiner. This is the standardized and accepted practice in the specialg of clinical neuropsychology, which enhances our ability to obtain valid performances, upon which we base our integpretations and conclusions. References relevant to third party observers and the related issue of test security. Axelrod B, Barth J, Faust D, Fisher J, Heilbronner R, Larrabee G, Pliskin N, Silver C; Policy and Planning Committee, National Academy ofNeuropsychology. (2000). Presence of third party observers during neuropsychological testing: Ofi'lcial statement of the National Academy of Neuropsychology. Archives ofClinical Neuropsychology, 15, 379-80. American Academy of Clinical Neuropsychology (2001). Policy statement on the presence of third party observers in neuropsychological assessments. The Clinical Neuropsychologist, 15, 433-9. -86- Baxth, RJ. (2007). Observation compromises the credibility of an evaluation. The Guides Newsletter, July/August, 1-9. Binder, L.M., & Johnson-Greene, D. (1995). Observer effects on neuropsychological performance: A case report. The Clinical Neuropsychologist, 9, 74-78. Constantinou, M., Ashendorf, L., & McCafi‘rey. R. (2002). When the third party observer of a neuropsychological evaluation is an audio-recorder. The Clinical Neuropsychologist, I 6, 407-412. Constantinou, M., Ashendorf, L., & McCaffiey, R. (2005). Efi‘ects of a third party observer during neuropsychological assessment: When the observer is a video camera. In R. McCaffrey (Guest Ed.) Special Issue: Third party observers. Journal ofForensic Neuropsychologi, 4, 39-48. Duff, K., & Fisher, J. (2005). Ethical dilemmas with third party observers. In R. McCafi'rey (Guest Ed.) Special Issue: Third party observers. Journal ofForensic Neuropsycholog, 4, 65-82. Eastvold, A.D., Belanger, H. G., Vanderploeg, R.D. (2012). Does a third party observer affect neuropsychological test performance? It depends. The Clinical Neuropsychologist, 26, 520- 541. Essig, S., Mittenberg. W., Petersen, R., Strauman, S., & Cooper, J. (2001). Practices in forensic neuropsychology: Perspectives of neuropsychologists and trial attorneys. Archives of Clinical Neuropsychology, 16, 271-291. Gavett, B., Lynch, J., & McCaffrey, R. (2005). Third party observers: The effect size is greater than you might think. In R. McCafi‘rey (Guest Ed.) Special Issue: Third party observers. Journal ofForensic Neuropsycholog, 4, 49-64. Horowitz, J..,E & McCaffiey, RJ. (2008). Effects of a third party observer and anxiety on tests of executive function. Archives ofClinical Neuropsychology, 23, 409-41 7. Howe, L.L.S., & McCaffrey, R.J. (2010). Third party observation during neuropsychological evaluation: An update on the literature, practical advice for practitioners, and future directions. The Clinical Neuropsychologist, 24, 518-537. Kaufinan, P. (2005). Protecting the objectivity, fairness, and integrity of neuropsychological evaluations in litigation: A privilege second to none? Journal ofLegal Medicine, 26, 95-13 1. Kaufman, P. (2009). Protecting raw data and psychological tests from wrongful disclosure: A primer on the law and other persuasive strategies. The Clinical Neuropsychologist, 23, 1130- 1159. -87- Kehrer, C., Sanchez, P., Habif, U., Rosenbaum, J.G., & Townes, B. (2000) Effects of a significant-other observer on neuropsychological test performance. The Clinical Neuropsychologist, 14, 67-71. Lynch, J. (2005). Effects of a third party observer on neuropsychological test performance following closed head injury. In R. McCaffrey (Guest Ed.) Special Issue: Third party observers. Journal ofForensic Neuropsychologi, 4, 17-26. McCaffrey, R., Lynch, J., & Yantz, C. (2005). Third party observers: Why all the fuss? In R. McCaffrey (Guest Ed.) Special Issue: Third party observers. Journal ofForensic Neuropsychologi, 4, 1-16. McCaffrey, R.J., Fisher, J.M., Gold, B.A., & Lynch, J.K. (1996). Presence ofthird parties during neuropsychological evaluations: Who is evaluating whom? The Clinical Neuropsychologist, 1 0, 435-449. McSweeny, A.J., Becker, B.C., Naugle, R.I., Snow, W.G., Binder, L.M., & Thompson, L.L. (1998). Ethical issues related to the presence of third party observers in clinical neuropsychological evaluations. The Clinical Neuropsychologist, 12, 552-559. Morel, K. M. (2009). Test security in medicolega] cases: Proposed guidelines for attorneys utilizing neuropsychology practice. Archives ofClinical Neuropsychologz, 24, 635-646. Sweet, J.J., Grote, C., & van Gorp, W. (2002). Ethical issues in forensic neuropsychology. In S.S. Bush & M. L. Drexler (Eds.). Ethical Issues in Clinical Neuropsychologz (pp. 103- 133). Lisse, Netherlands: Swets & Zeitlinger. Victor, T., & Abeles, N. (2004). Coaching clients to take psychological and neuropsychological tests: A clash of ethical obligations. Professional PsychologI: Research and Practice, 35, 373-3 79. Wetter, M., & Corrigan, S. (1995). Providing information to clients about psychological tests: A survey of attorneys’ and law students’ attitudes. Professional Psychology: Research and Practice, 26, 474-477. Yantz, C., & McCaffrey (2005). Efiects of a supervisor’s observation on memory test performance of the examinee: Third party observer effect confirmed. In R. McCaffrey (Guest Ed.) Special Issue: Third party observers. Journal ofForensic Neuropsychologl, 4, 27-38. The individuals listed below comprise the entire group ofclinical neuropsychologists who as of June 1, 2012 are board-certified by the American Board ofClinical Neuropsychologz (ABCN), which is one 0f]4 psychology specialties operating under the auspices ofthe American Board of Professional Psycholog/ (ABPP). All signatories are licensed as clinicalpsychologists in Illinois, reside in Illinois, and activelypractice in Illinois. -88- Joseph S. Alper, Ph.D., ABPP Joshua A. Barras, Ph.D., ABPP Bryan A. Bernard, Ph.D., ABPP Kyle R. Bonesteel, Ph.D., ABPP Theresa Campbell, Ph.D., ABPP Amy V. Davis, Ph.D., ABPP Jill Dorflinger, Ph.D., ABPP Joseph W. Fink, Ph.D., ABPP Elizabeth K. Geary, Ph.D., ABPP Diana S. Goldstein, Ph.D., ABPP ChristopherL. Grote, Ph.D.,ABPP (Zz/é M fl/a AKW Robert E. Hanlon, Ph.D., ABPP I////’ //‘%\ Robert L. Heilbronner, Ph.D., ABPP mféWM/gfi Erin K. Hill, Psy.D., ABPP 720344 #111, [511g :15m 4:;§kDavid Katz, Ph.D., ABPP \ \_-. -89- Shanna Kunh,Ph.D.,ABPP 74'W\ rW lNancy A. Landre, Ph.D., ABPP 3 Eric LaIson, Ph.D., ABPP Brian J. Leahy, Ph.D., ABPP flmflw/ Aaron C. Malina, Ph.D., ABPP 974:f, Eileen M. Manin, Ph.D., ABPP David L. Nyenhuis, Ph.D., ABPP >< 2e)R/:- Elizabeth M. Pieroth, Psy.D., ABPP 1/50““ W ' Neil H. Pliskin, Ph.D., ABPP M Margaret Primeau, Ph.D., ABPP //-/L/L é MjJAh/D Christopher Randolph, Ph.D., ABPP Jacqueline G. Rea, Ph.D., ABPP a wfbo/Ln, pf/fl” f Linda D.Rice,Ph.D.,ABPP d/Wpflm Steven E. Rothke, Ph.D., ABPP fig ‘M Jeny J. Sweet, Ph.D., ABPP gm,“W Sandra Weintraub, Ph.D., ABPP éfla/fl/ ' -90- Douglas M. Whiteside, Ph.D., ABPP W/ V :1 , Ronald F. Zec, Ph.D., ABPP QMJLQ - C; . $0 ”Aic‘N‘ gigcfififllon 40 39911-50” Affldflfl fl American PsychologicalAssoclation than! mg}- ABN AMERICAN ,. . PSYCHOLOGICAL ASSOCIATION Them III-i Ifw PRACTICE ORGANIZATION Ms. Jill Leacock Secretary, Rules Revision Committee The Supreme Court of British Columbia 800 Smithe Street Vancouver, British Columbia Canada V6Z 2E1 October 27, 2014 Re: Audio recording independent medical examinations Dear Ms. Leacock: The Inter Organizational Practice Committee (IOPC) is a coalition of the American Academy of Clinical Neuropsychology (AACN), the Society for Clinical Neuropsychology/Division 40 of the American Psychological Association, the National Academy 0fNeuropsychology (NAN), the American Board of Professional Neuropsychology (ABN), and the American Psychological Practice Organization (APAPO) tasked With coordinating national neuropsychology advocacy efforts, and representing thousands of neuropsychologists in the United States and Canada. The IOPC has become aware that the Rules Revision Committee has received a submission from the Trial Lawyers Association 0f British Columbia proposing a rule change t0 permit audio recording of independent medical examinations. This practice has been discouraged within the field of psychology and neuropsychology for many years with several position papers and many academic papers outlining the detriments of this practice to the validity of such examinations. We are writing now to express our strong concerns regarding this practice and ask that you oppose this proposed rule change. AACN, NAN, and ABN have each published position papers stating that third party observers compromise examination validity. Copies of the position papers are attached as appendices. Their content can be summarized as follows: The greatest degree of validity is obtained in Independent Medical Evaluations when examinees are motivated to cooperate with an examiner in a candid/ unbiased fashion in the context of a controlled, standardized testing environment. The physical or electronic presence (e.g. Video 0r audio recording) 0f a third party observer during a neuropsychological or psychological assessment compromises both the validity of the assessment and the validity of the tests themselves. 1. Third party observers are a source 0f distraction in the assessment. Even when third parties are not in the room, the knowledge that a third party is listening Via electronic means creates -91- an internal source 0f distraction. This undermines the ethical principal for psychologists of creating a distraction free test environment. 2. Neuropsychological and psychological measures have been developed under a specific set of highly controlled conditions that did not include third patty observers. Their presence introduces an unknown variable that prevents the examinees’ scores from being meaningfully compared to established norms. Valid interpretation of examinee’s test data is therefore compromised. 3. The presence of third party observers obstructs the development of meaningful rapport between the psychologist and examinee. When a third party is in the room or listening via electronic recording device, an examinee’s rapport may be directed solely towards the unseen observer. 4. The content of the test questions is no longer secure. Anyone who listens to the tape of the assessment knows exactly What questions are asked during the standardized assessment. If the general public knows the test questions, then examinees can be coached to provide answers favorable t0 their claim. The tests lose their validity, much as the validity 0f a professional law or medical board examination would no longer have validity if the test questions were Widely known. We thank you for your valuable time and consideration of these points and welcome any questions that you might have about the concerns outlined in this letter, and we would be happy to provide you with any additional information that you might find to be helpful (karenpostal@comcast.net; 978-475-2025). On behalf of the American Academy of Clinical Neuropsychology, National Academy of Neuropsychology, Division 40 (Society for Clinical Neuropsychology) of the American Psychological Association, and the American Board of Professional Neuropsychology, Thank you for your time and consideration. Respectfully submitted, E MadaM&m Mark Mahone, Ph.D., APBB President, American Academy of Clinical Neuropsychology K 4WC/V4W.M Katherine Nordal, Ph.D. Executive Director, American Psychological Association Practice Organization -92- Daniel Allen, Ph.D., ABPP President, National Academy ofNeuropsychology WQWRM Neil Pliskin, Ph.D., ABPP President, Society for Clinical Neuropsychology (APA Division 40) WW John Meyers, Ph.D., ABN President, American Board of Professional Neuropsychology -93-
